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UNIVERSITY 

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LffiRARY 


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THE  LAW  RELATING 


TO 


OIL  AND  GAS 


INCLUDING 


Oil  and  Gas  Leases  and  Contracts,  Production  of  Oil  and  Gas,  both  Natural 

and  Artificial,  and  Supplying  Heat  and  Light  thereby,  whether 

by  Private  Corporations  or   Municipalities 


BY 

W.  W.  THORNTON 

Author  of    Gifts  and    Advancements,   Lost  Wills,    Railroad   Fences   and 
Private  Crossings,  etc. 


CINCINNATI 

THE  W.   H.  ANDERSON  CO. 

LAW  BOOK   PUBLISHERS 
1904 


T 
T3974, 


Copyrighted   1904 
THE  W.  H.  ANDERSON  CO. 

CINCINNATI. 


OIL  AND  GAS 


7769fi8 


PREFACE. 


The  production  of  petroleum  in  this  country  annually 
amounts  to  millions  of  barrels,  and  in  value  to  millions  of 
dollars.  It  is  one  of  the  greatest  industries  of  this  country. 
The  value  of  natural  gas  annually  flowing  from  the  earth  is 
of  almost  inestimable  value.  Since  petroleum  and  natural 
gas  became  commercial  products,  thousands  of  cases  concerning 
their  production,  sale  and  transfer,  involving  new  and  unusual 
questions,  have  been  decided  in  our  courts,  many  of  which  have 
been  reported  in  ofiicial  and  unofficial .  publications.  These 
"  new  and  unusual  questions "  have,  at  times,  sorely  tried 
the  courts  to  determine  and  settle  the  rights  of  the  contending 
parties  according  to  legal  principles  and  in  accordance  with 
justice.  Cases  have  .come  before  the  courts  involving  many 
questions  of  so  unique  a  character  that  no  precedents  could  be 
found.  Necessarily,  there  has  grown  up  quite  a  body  of  law, 
unknown  to  the  past  generations.  To  collate  and  discuss  the 
many  cases  involving  questions  concerning  petroleum  and  nat- 
ural gas,  and  the  rights  and  liabilities  involved  in  their  produc- 
tion, sale  and  transportation,  has  been  one  of  the  objects  of 
the  author  in  the  preparation  of  this  volume. 

The  subject  of  oil  contracts  has  also  been  discussed  at  length. 

Much  prominence  has  been  given  to  the  subject  of  oil  and 
gas  leases, —  by  which  is  meant  leases  of  lands  for  the  purpose 
of  developing  them  to  secure  petroleum  and  natural  gas, —  and 
questions  growing  out  of  that  subject.  Early  in  the  prepara- 
tion the  author  perceived  the  impossibility  to  reconcile  alt  the 
cases  upon  this  subject,  and  to  harmonize  them  in  a  satisfactory 
manner.  Wliat  he  has  attempted  to  do  has  been  to  state  '^le 
questions  decided,  at  times  giving  his  own  views  for  whatever 

iii 


iv  PREFACE. 

they  may  be  worth.  He  has  cited  many  cases,  where  he  tliought 
them  applicable,  upon  the  subject  of  raining  of  solid  minerals, 
—  coal  mining  cases, —  believing  that  those  using  this  work 
would  find  such  cases  of  value  and  aid  them  in  their  practice. 
In  this  he  has  gone  far  beyond  the  line  adopted  by  writers  upon 
the  subject  of  oil  and  gas.  Especial  care  has  been  taken  to 
secure  citations  of  all  cases  upon  this  subject. 

The  work  is  not  confined  merely  to  the  subject  of  petroleum 
and  natural  gas,  and  their  production.  The  production  and 
supplying  of  artificial  gas  has  been  treated  at  length, —  much 
more  so,  it  is  believed,  than  can  be  found  elsewhere  either  in 
this  country  or  England.  The  duty  of  a  gas  company  to  furn- 
ish gas  to  the  consumer,  its  liability  for  failure  to  furnish  him 
gas,  and  its  liability  to  him  for  neglect  whereby  he  or  others  are 
injured  by  leaking  or  exploding  gas  has  been  treated  at  con- 
siderable length. 

Particular  attention  has  been  given  to  the  powers  of  munici- 
palities to  light  their  streets,  to  furnish  gas  to  their  inhabitants, 
and  their  relations  to  gas  companies,  and  the  right  of  these  com- 
panies to  use  streets  and  highways  for  the  laying  of  their  pipes 
or  mains  therein.  It  is  believed  that  nowhere  else  has  the 
subject  of  exclusive  or  monopolistic  grants, —  the  right  to  oc- 
cupy the  streets,  to  the  exclusion  of  all  other  competitors, — 
.  been  treated  as  exhaustively  as  in  the  present  work. 

The  right  of  a  municipality  or  a  legislature  to  regulate  gas 
companies  and  to  control  their  rates  to  customers  has  received 
particular  attention. 

Upon  these  subjects  electric  lighting  and  sti^et  railway  cases 
have  been  frequently  cited,  as  well  upon  the  subject  of  the  right 
of  electric  and  street  railway  companies  using  the  streets  of 
a  city. 

A  chapter  has  been  devoted  to  the  subject  of  insurance  in 
connection  with  use  and  storage  of  oil  and  gas  in  the  building 
insured. 

The  aim  has  been  to  not  only  make  this  volume  a  useful 
and  convenient  work  for  the  practitioner  having  an  oil  or  gas 
lease  or  contract  under  consideration,  but  also  for  attorneys  of 


PREFACE.  •  V 

municipalities  and  artificial  and  natural  gas  .companies  who 
are  investigating  the  rights  and  duties  arising  between  munici- 
palities and  gas  companies,  as  well  as  the  rights  and  duties  of 
gas  companies  to  the  inhabitants  of  such  cities  and  to  their, 
patrons  or  customers. 

Forms  of  oil  and  natural  gas  leases  and  contracts  used  ill 
Pennsylvania,  West  Virginia,  Ohio,  Indiana,  Kansas  and  Texas 
have  been  inserted  in  the  Appendix,  which  it  is  believed  will 
be  found  to  be  useful. 

W.  W.  Thornton. 
Indianapolis,  Ind. 

January  1,  190Jf. 


CONTENTS. 


CHAPTER  I. 

HISTORICAL  SKETCH. 

SEC.  PAGE. 

1.  Petroleum    known    to    ancients 1 

2.  Early  discoveries  of  petroleum  in  United  States    3 

3.  Early  account  of  a  western  New  York  oil  spring 5 

4.  Washington   county,    Ohio,    oil   well 8 

5.  The  first  oil  well  in  United  States 9 

6.  Other  first  oil  wells  in  United  States 12 

7.  In    what    countries    petroleum    found 13 

8.  Natural   gas  was  known  to  ancients 15 

9.  Early    natural    gas    in    America 16 

10.  Sources  and  composition  of  petroleum  and  gas 18 

11.  Composition    of     petroleum 21 

12.  Composition    of    natural    gas 

13.  Early   attempts   at   distilling   or   refining  petroleum 24 

14.  Early  use  of  petroleum  as  a  medicine 25 

15.  Transportation     26 

16.  The  first  oil  lease -8 

17.  Early   use   of   artificial    illuminating   gas 29 

CHAPTER  IT. 

LEGAL  STATUS  OF  OIL  AND   NATURAL  GAS. 

18.  Oil    and    natural    gas    a    mineral 31 

19.  Part    of    realty 32 

20.  Ownership     in    earth 33 

21.  Compared    with    animals    farse    naturae 33 

22.  When   title   vests   in   owner 34 

23.  Ownership  of  oil  differs  from  that  of  water 35 

24.  Owner   of  land  has   only   a  qualified   ownership 37 

25.  Qualified    ownership    in    oil — power    of    legislature 39 

26.  Severance  of  oil  or  gas  from  realty 42 

27.  Recovery    of    severed    product — Trover 43 

28.  Wasting    gas — injunction     44 

29.  Increasing  flow  of  gas  by  pumping  well 45 

30.  Pumping    oil    wells ^  ■  47 

31.  Exploding  nitroglycerin  in  well  to  increase  flow 47 

32.  Maliciously  boring  well  to  injure  another 48 

vii 


viii  CONTENTS, 

SEC.  PAGE. 

33.  Measure  of  damages  for  unlawfully  taking  oil  and  gas  from  tlie 

soil     48 

34.  When   lessee   acquires   title    to   oil 49 

35.  Waste, — part   of    realty 50 

36.  Partition 51 

37.  Oil    and   gas   not   synonymous ." 52 

38.  "Other  valuable  volatile  substances" 52 

39.  Natural   gas   not   heat. 52 

40.  Gas  and  oil  an  article   of  commerce 52 

41.  Judicial  notice 53 

42.  Judicial   knowledge   of   oil   and   gas  properties 54 

43.  Plugging  wells 54 

44.  Not  subject  to  tariff  law  of  1890 55 

45.  Entry  of  government  oil  lands 55 

46.  Property    in   oil   tanks   or   pipe-lines 55 

CHAPTEK  III. 

OIL  AND  GAS  LEASES. 

47.  Peculiarity     60 

48.  Name  applied  to  instrument  does  not  determine  its  legal  effect.  .  62 

49.  Lex   loci   governs 62 

50.  License  and   incorporeal   hereditaments 62 

51.  Interest  of  lessee  is  a  chattel  real 63 

52.  Contract  giving  interest  in  real  estate 64 

53.  Estate  does  not  vest  if  oil  or  gas  not  found 67 

54.  Vesting   title  subject  to   condition   precedent. — Diligence 69 

55.  Tenancy  from  year  to  year  or  at  will 70 

56.  Unilateral    Contract 71 

57.  Legal    interest   of   lessee   in   various    leases — digest 72 

58.  Sale  of  oil  and  gas,  and  not  a  lease 76 

59.  Presumption  as  to  ownership  of  oil  or  gas  is  ground 77 

60.  Administrator's  right  to  lease  or  contract — presumption 78 

61.  Lease    and    not    a    license 79 

62.  License     82 

63.  License  —  consideration  —  revocation 82 

64.  License,    revocation 82 

65.  Merger    83 

OG.  Consideration    • 84 

67.  Option    to    purchase    after    development 86 

68.  Option   to   extend  lease 87 

09.  Acceptance  of  second  lease  by  lessee  in  first  lease.-. 87 

70.  Extension  of  time  of  lease  may  amount  to  a  new  lease 88 

71.  Options — r0\'O'cation 88 

72.  Options    continued 91 

73.  Option  to  pay  rent  or  drill   well 93 

74.  Appurtenances,  what  will  pass  as  such 93 

75.  Statute    of    frauds 94 


ix 

CONTENTS. 

PAGE. 

SEC.  gg 

76.  Description   of  leased   premises ^^ 

77.  Right  of  lessor  to  use  surface ^^ 

78.  Construction     gg 

79  Construction  of  instrument  by  parties 

80.  Unfilled  blanks.-Written  and   printed  clauses .■.■.■■."  lOO 

81.  Execution    of    lease ^^^ 

82.  Defective    execution    or    acknowledgment ^^^ 

83.  Parol   change   of   written   lease 101 

84.  Acceptance — estoppel     ^^2 

85.  Lessee  need  not  sign  lease— deed ■  ^^^ 

86.  Separate   owners  giving  joint  lease ^^^ 

87.  Notice   to   one   of    several   lessees ......103 

88.  Second    lease,— notice ■■  ■  ■ ; , ^^ 

89  A-ent  of  lessee  may  take  lease   after   forfeiture. 

90".  Exclusive  right  of  licensee  of  lessee.-Solid  mineral  oil.  .  ....  •  -lOo 

91.  Implied    covenant ^Qg 

92  Covenant    running    with    land ^^^ 

hereditament— lease— surrender    • ^^^ 

95.     Lessee  liable  after  assignment  on  express  covenants ......  .  .  •  •  •  •  ^^-- 

96. 

97. 

98      Ao-reement  as   w   wnat   «_....•. -     -  -  ^^^ 

1^:     ;2r:":Lt^^;-vai;ieof  Wseb^ 

101.  Les^^rai^ing  premises  by  operations  on  adjoining  territory.  .  .  .m 

102.  Drilling   well    near   boundary    line •••• ^^^ 

103.  Injunction— quieting    title •  •  • ^21 

104.  Damages     _ 122 

in'S      Damao-es  for  failure  to  keep  covenant 

106'.  images   for   neglect  to   develop   or   operate  leased  premise..  ...  1-3 

107.  Damages   for  neglect  to   operate-res  .ludicata ;;■.■...  124 

108.  Damages   for   taking   oil   or   gas ^25 

109.  Boundaries.— Location  of  wells [........ vl26 

110.  Selection    of    site 1-27 

111  Number    of    wells 1-28 

112  .  Number   of  wells.— Protecting  lines ^^^ 

113  Test  wells.-Excuse  for  not   drilling ^^2 

114  Test  well,  when  need  not  be  drilled ^^^ 

117.     "Shooting"  well 136 

lis      Oil  lease,  who  entitled  to  gas / '' "  \  .  139 

,19.  Oil  lease  gives  no  nght  to  gas  i.  oil  be  not  found . .  .  . . .  .  ■ ,  •  ■  •  ■  ■  ^^^ 

190      Eviction— ejectment     ■ '  '  "  '  141 

m.     Failure    of    title.,   reimbursement   of    operator 


When  work   must  be  begun • "  '  , ., 

Mi"enoe  in  operating  leased  premises  after  development.. • 

Agreement  as  to  what  constitutes  due  diligence •  ■ 


X  CONTENTS. 

SEC.  PAGE. 

122.  Lessee    denying    tenancy 142 

123.  Uncertainty   on   lease. — Unconscionable 142 

124.  Diameter  of  wells 143 

125.  Contract  to  drill  wells  "in  the  vicinity." 143 

CHAPTEE  IV. 

DURATION  OF  LEASE. 

1 26.  Ordinary    leases .- 144 

127.  Diligent   search. — Implied    covenant 145 

128.  Holding   for    speculation    purposes 145 

129.  Non-development   of  leased  premises  where  no  limit  fixed. — For- 

feiture     146 

130.  Greater  diligence  required  in  developing  oil  than  coal  lands 148 

131.  Acquiescence    in   delay — unavoidable    accident 150 

132.  Acquiescence   in  abandonment — damages 150 

133.  Actual  mining  operations  must  be  commenced 150 

134.  In    paying    quantities 151 

135.  Paying    quantities,    continued 135 

136.  Gas  in   paying  quantities 157 

137.  Abandonment 160 

138.  Lessee  may  abandon  non-productive  premises 162 

1.39.     Completion  of  non-productive  well — title 163 

140.  Instances    of    abandonment 163 

141.  Cessure   of  work   after   operations   begun 166 

142.  Surrender     168 

143.  Surrender  by  substitution  of  tenants  or  assignment  of  lease 169 

144.  Parol    surrender 172 

145.  Payment   of   rental    instead    of   developing  premises 172 

146.  Rescision    for    fraud 174 

CHAPTER  V. 

FORFEITURE  OF  LEASE. 

147.  Forfeiture  not  a  favorite  of  the  law 176 

148.  Rule  in  gas  or  oil  leases 176 

149.  History  of  change  in  rule  giving  lessor  exclusive  right  to  declare 

a    forfeiture 179 

150.  Forfeitu"c  favored  by  equity  when  it  will  promote  justice 182 

151.  Lessor  only  can  declare  forfeiture 182 

152.  Heirs  or  assignees  of  lessor  may  declare  forfeiture, — assignee.  .  .  .185 

153.  Stranger  cannot  avail  himself  of  forfeiture 180 

154.  Lease  may  be  voidable  at  election  of  lessee  on  his  default,  sur- 

render     186 

155.  Lessee  cannot  insist  on  forfeiture  to  escape  rent 188 

156.  Forfeiture   clause  omitted 189 

157.  Implied  covenants  do   not  authorize  forfeiture 189 

158.  Notice  of  election  to  declare  forfeiture 190 


CONTENTS.  XI 

SEC.  PAGE. 

159.  Waiver  of  forfeiture 191 

160.  Waiver  of  forfeiture  by  accepting  payment 194 

161.  Eviction   of   lessee 196 

162.  Failure  to  operate  and  not  for  failure  to  develop 197 

163.  Continuance   of   operation 197 

164.  Production  of  gas  will  not  prevent  forfeiture  of  an  oil  lease....  198 

165.  Covenant  uncertain 19S 

166.  Re-entry   199 

167.  Release  of  premises  equivalent  to  a  re-entry 200 

168.  Surrender  after  assignment — forfeiture 20ii 

169.  Forfeiture  of  only  part  of  lease 202 

170.  Partial  development — abandonment 205 

171.  Lessee  draining  leased  premises  by  wells  on  adjoining  territory. .  .206 

172.  Lessee  draining  away  oil  by  sinking  wells  on  adjoining  premises.  .207 

173.  Inability   to   complete   work 207 

174.  Mortgage  of  leasehold  may  work  a  forfeiture 209 

175.  When  work  must  be  completed 209 

176.  Excavating  for  oil  means  bringing  it  to  the  surface 210 

177.  Failure  to  pay  royalty  or  report  them 210 

178.  Payment  of  rent  will  not  prevent  forfeiture  for  neglect  to  develop. 211 

179.  Must  pay  rent  although  no  oil  on  premises 212 

180.  Lessee  must  pay  past  rents. — Damages 213 

181.  Lessor  consenting  to  abandonment 213 

182.  Estoppel    of    lessor 214 

183.  Demand  for  compliance  with  lease 215 

184.  Abandonment   a   question   of   intention 215 

185.  Forfeiture  a  question  for  jury 215 

186.  Suit  to  cancel  lease  for  non-development  of  territory 217 

187.  Relief   from   forfeiture 218 

188.  Time  to  avoid  forfeiture 219 

189.  Lessee  cannot  recover  premises  after  forfeiture 220 

190.  Reimbursement   for    expenses 220 

191.  Removal   of   fixtures   and   machinery 221 

192.  Damages  instead  of  declaring  a  forfeiture 222 

CHAPTEK  VI. 

ASSIGNMENT  AND  SUBLETTING  OF  LEASE. 

193.  Lessor  —  lessee 223 

194.  Interest  assignee  secures 224 

195.  Assignee  cannot  take  advantage  of  default  in  lease 224 

196.  Refusing  consent  to  assignment 224 

197.  Sublease.— Division    225 

198.  Assignment   carries   option , 225 

199.  Transfer   of  lease  by  judicial   sale i|. 22G 

200.  Equitable  assignee  in  possession 227 

201.  Lease    unassignable 227 

202.  Assignment    of   royalties 228 


XW  CONTENTS. 

SEC.  PAGE. 

203.  Assignee    of    lessee    bound    by    agreements    in    lease. — Privity    of 

estate    ' 231 

204.  Ground  of  assignee's   liability  to   lessor .  .232 

205.  Assignee's  liability  broadened  by  terms  of  assignment  or  by  out- 

side   contract 234 

206.  Extent   of   assignee's    liability .  ; 235 

207.  Liability  of  assignee  of  a  part  interest  in  lease 237 

208.  Liability  of  occupier  under  unassigned  lease •. 238 

209.  Assignee  not  taking  possession  liable 238 

210.  Several   successive   assignees 239 

211.  Lease  not  executed  by  lessee,  but  possession  taken  under  the  lease, 

effect    239 

212.  Lessee  released  by  substitution  of  assignee 240 

213.  Trustee  of  lessee  and  not  his  cestuis  que  trustent  liable 242 

214.  Cestuis  que  trustent  may  be  liable 243 

215.  Liability  of  assignee  to  his  assignor 243 

216.  Assignor  liable  on  account  of  lease  as  a  surety 245 

217.  Sublease — liability  of  sublessee 246 

CHAPTER  VII. 

RENTS  AND  ROYALTIES. 

218.  Limitations  of  chapter 249 

219.  Construction   of   leases 249 

220.  Various  methods  of  fixing  rents  or  royalties 250 

221.  A  royalty  is  rent — "mining  rent." 250 

222.  Definition  of  rent  and  rent  charges 251 

223.  Payment    so    much    per    well 252 

224.  Royalty,   percentage  of  profits  or  income 253 

225.  Payment  of  operating  expenses  first. — Free  gas 254 

226.  Free    gas 255 

227.  Royalty  in  gas  or  oil  used  to  operate  leased  premises. . 257 

228.  When  royalty  due, — removal  of  oil  from  premises 258 

229.  When  rent  is  due  for  failure  to  develop  land 259 

230.  To  whom  payable — joint  lessors 259 

231.  Damages  for  failure  to  deliver  lessor  his  share 261 

232.  Interest   on   royalties 261 

233.  Waiver — parol    exidence 261 

234.  Surrender — tract    "retained." 261 

235.  Interdependent   conditions 262 

236.  New   lease    262 

237.  Termination  of  lease  by  failure  to  keep  its  terms 263 

238.  Lessee  cannot  avoid  payment  by  taking  advantage  of   forfeiture 

clause     264 

239.  Forfeiture   clauses  and   liability  for  rent 205 

240.  Surrender  of  lease  necessary  to  escape  liability  for  rent 267 

241.  Eviction    268 

242.  Rent  to  be  paid  if  well  not  drilled 268 


COjJ^TENTS.  Xlil 

SEC.  PAGE. 

243.  Minimum    production    allowed 271 

244.  Consideration  for  lease  may  be  purchase  money 272 

245.  Consideration  for  giant  part  of  minerals,  creates  an  exception.  .  .273 

246.  One  well  draining  two  tracts  of  land 273 

247.  Oral  change  of  lease  discharging  or  changing  rents* 274 

248.  Failure  of  oil,  royalty  ceases 274 

249.  Rent  for  exhausted  well, — flooded  well 275 

250.  Instances  of  1-essee's  liability 275 

251.  Account    rendered 277 

252.  How  collected 277 

253.  Lien  of  royalty  accruing  during  receivership 278 

254.  Assignment  of  lease  does  not  carry  oil  in  tank  on  premises 278 

CHAPTEE  VIII. 

WHO  MAY  MAKE  A  LEASE. 

255.  Owner  of  land  may  grant 279 

256.  Infants. — Lunatics   279 

257.  Married    women 280 

258.  Wife  joining  husband  in  lease — homestead 284 

CHAPTER  IX. 

TENANTS  FOR  YEARS. 

259.  May  work  open  mines 285 

260.  When   may  open   new  mines 285 

CHAPTER  X. 

TENANCIES  FOR  LIFE.— DOWER. 

261.  May  work  mines  or  oil  wells  already  open 287 

262.  Rule  concerning  life  tenants  applies  to  oil  leases 288 

263.  May  not  open  new  mines  or  bore  new  wells 289 

264.  Curtesy  estate  of  husband 289 

265.  When  mines  may  be  opened  or  wells  bored 290 

266.  Mineral  lands  unfit  for  atiy  other  purposes  than  mining 291 

267.  Reversioner  or  remainderman  opening  wells ..292 

268.  Life-tenant  must    account  for  waste 292 

269.  Title   to   mineral    or   oil   severed 293 

270.  Destruction  of  corpus  of  the  estate 293 

271.  Oil  or  gas  may  be  exhausted '*>"^^ 

272.  Estoppel    of    remainderman 294 

273.  Assignment  of  dower  in  mines 294 


^^  CONTENTS. 

CHAPTEK  XL 

CO-TENANTS. 

SEC.  PAGE. 

274.  One  co-tenant  may  operate  land  of  co-tenancy  for  oil  or  gas 296 

275.  Lease  of  license  granted  by  co-tenant 297 

270.     Partition  of  mines  or  mineral   lands 297 

277.  Partition  of  oil  or  gas  lands 299 

278.  Accounting   between    co-tenants 300 

279.  Accounting  when   tenant   excludes   co-tenant 305 

280.  Owner  of  surface  not  co-tenant  with  owner  of  mineral  beneath 

surface     306 

281.  Purchase  by  tenant  of   co-tenant's   interest 306 

282.  Equity   jurisdiction   of   an  accounting 306 

283.  Expense  of  working  joint  property 307 

284.  When  a  tenant  bound  by  co-tenant's  act 308 

285.  Injunction     308 

286.  Surrender  of  lease  by  co-tenant 308 

287.  Payment  of  rent  or  royalties 309 

288.  Fidelity  relation  between  members  of  a  mining  partnership 309 

CHAPTEK  XII. 

CONTRACTS  FOR  A  LEASE. 

289.  Not  often  drawn  into  controversies 313 

290.  Indefiniteness    313 

291.  What    is    a    sufficient    writing 314 

292.  Effect  of  taking  possession  under  contract 317 

293.  Specific  performance  of  contract  for  lease 318 

294.  Damages  for  breach  of  contract  to  give  lease 320 

CHAPTER  XIII. 

ADVERSE  POSSESSION  —  STATUTE  OF  LIMITATIONS. 

295.  Peculiarities  of  oil  and  gas  —  possession  of  surface 321 

296.  Rule  as  to  oil  and  gas 322 

297.  Possession  of  surface  not  adverse  to  owner  of  oil  or  gas 323 

298.  Possession  of  oil  operator  not  adverse  to  owner  of  surface 325 

299.  Acquiring  right  to  oil  or  gas  under  statute  of  limitation 325 

300.  Receiver  —  title  in  dispute  —  injunction 326 

301.  Accounting  . .  i 327 

CHAPTER  XIV. 

RESERVATION  AND  EXCEPTION. 

302.  Distinction  between  reservation  and  exception 328 

303.  Severance  of  mineral  by  reservation  or  exception 329 


CONTENTS.  ^^ 

SEC.  PAGE. 

.304.     Reservation  of  "all  minerals"  includes  oil  and  gas 329 

305.  Reservation  of  right  to  drill  for  oil  restricted 332 

306.  Ownership  of  gas  or  oil  beneath  public  highways,  rivers  or  sea.  .  .332 

307.  Reservation  or  exception   subject  to   lien  of  judgment 334 

308.  Wife's   interest   in   reservation  —  construction 334 

309.  Location  of  oil  claim  on  public  lands 335 

CHAPTER  XV. 

PARTNERSHIPS. 

310.  Mining  partnerships  applicable  to  gas  and  oil  operations 336 

31 1.  Tenants  in  common  not  partners 337 

312.  By  agreement  a  mining  association  becoming  an  ordinary  partner- 

ship     338 

313.  Mining  agreements  that  create  ordinary  partnerships 339 

314.  Working  a  mine  together  creates  a  mining  partnership 340 

315.  Selection  of  a  partner. —  Sale  of  interest 341 

316.  Tenants   in  common  usually  do  not  become  partners 342 

317.  Illustration  of  what  makes  a  mining  partnership 343 

318.  Promoters  —  Prospectors 345 

319.  Life  of  mining  partnership  —  dissolution 346 

320.  Partition  and  accounting  works  a  dissolution 347 

321.  Majority    control 347 

322.  Power  of  partner   in  mining  or  oil  enterpri.se 347 

323.  Partner's    lien 350 

324.  Liability  of  incoming  partner 350 

325.  Each  partner  liable  for  all  partnership  debts 351 

326.  Limited    partnerships 351 

CHAPTER  XVI. 

MECHANICS'  LIENS. 

327.  Lubricating    oil 3.53 

328.  Labor  or  material  must  be  furnished  under  a  contract 353 

329.  For  what  material  furnished  a  lien  may  be  obtained 354 

330.  For  what  labor  a  lien  may  be  obtained 356 

331.  Overseer,  custodian  or  superintendent  entitled  to  a  lien 35> 

332.  Upon  what  interest  in  land  lien  may  be  acquired 359 

333.  Lien    on    oil    well 359 

334.  Forfeiture   of   lease 360 

335.  Retroactive    eflfect 361 

336.  Priority   of   liens 361 

337.  Notice  of  claim  of  lien  —  description  of  land 362 

338.  Assignment  of  claims .V. 363 

339.  On  plant  of  public  gas   company 363 

340.  Oil   refinery  —  paraffine  works 364 


XVI  CONTENTS. 

CHAPTER  XVII. 

MOKTGAGES. 

ART. 

1.  Mortgage  of  oil  or  mining  property. 

2.  Mortgage  of  gas  plant. 

ARTICLE    1. 

MORTGAGE  OF  OIL  OR  MINING  PROPERTY. 

SEC.  PAGE. 

341.  Leasehold   may  be   mortgaged   by   lessee 365 

342.  Lessor  may  mortgage  premises 360 

343.  Mortgage  of  oil  or  mining  lease  in  Pennsylvania 368 

344.  Mortgagor  may  remove  gas,   oil  and  minerals 370 

345.  Mortgagor   in   possession 370 

346.  Mortgagee   in   possession 371 

347.  Mortgagee  in  possession,  English  rule 373 

ARTICLE    2. 
GAS  PLANT. 

348.  Gas    plant 380 

CHAPTEE  XVIII. 

TRANSPORTATION   AND   EMINENT   DOMAIN. 

349.  Scope  of  chapter 382 

350.  Transportation  of  gas  or  oil  a  public  use 382 

351.  Carriers  of  oil  —  tank  cars 38 1 

352.  Transportation  from  state  cannot  be  prevented 384 

353.  Transportation   by   pipe-line. —  Inter-state   commerce 385 

354.  Regulation  of  transportation 386 

355.  Ownership  of  oil  in  pipe-lines   388 

356.  May  be  endowed  with  powers  of  eminent  domain 388 

357.  Artificial   gas   companies 38!) 

358.  Foreign  companies  excluded  from  use  of  power  of  eminent  domain.  ■"JOw 

359.  Number  of  lines  that  can  be  laid  in  right  of  way  acquired 3!)1 

360.  Laying  pipes  in  country  highway 391 

361.  Measure  of  damages,  for  taking  right  of  way 391 

362.  Damages  occasioned  by  gas  company's  trespass  on  land 393 

363.  Prospective  damages  for  fires  and   explosions 393 

364.  Removal  of  pipe  line,  damages 394 

365.  Pipe  line  crossing  right  of  way  of  railroad  company 394 

366.  Revocation   of  license 355 

367.  Route,  specifying  in  petition  —  more  than  one  route 395 

368.  Coal   mine   beneath   pipe   line  —  support 395 

369.  Well  pipe  passing  through  coal  mine 397 


CONTENTS.  ^V" 

CHAPTER  XIX. 

TRANSPORTATION   OF   OIL   AND  GAS. 

SEC.  PAGE. 

370.     Limit    of    discussion 398 

37 L     Injuries    occasioned    in    transporting   oil    by   reason   of    defective 

cars  or  track 398 

372.  Defective  oil  tank  —  car  —  remote  liability  —  intervening  agency. 

Crude  petroleum  not  a  dangerous  agency 372 

373.  Oil  shipped  on  trains  carrying  other  goods 404 

374.  Shippers   liability   to   servant   of   carrier. —  Naphtha  —  petroleum 

—  dangerous    agency 404 

375.  Injury  to  passengers  — Train  wreck 405 

376.  Curiosity    seekers. —  Exploding   oil 407 

377.  Allowing  oil  to  escape  from  pipe  line 408 

378.  Inspection   of   pipe   line 408 

379.  Oil  illegally  stored  at  railroad  station 409 

380.  Storing   oil    in   warehouse 409 

381.  Thief  setting  oil  on   fire 410 

CHAPTER  XX. 

LEGISLATIVE  AND  MUNICIPAL  CONTROL. 

382.  Gas  a  dangerous  agency  —  police  powers 411 

383.  Regulating  pressure  in  pipes 412 

384.  Prohibiting  transportation  of  gas  beyond  the  state 415 

385.  Plugging  abandoned  wells  —  waste  of  gas 415 

386.  Preventing  waste  of  gas  —  Flambeau  lights 417 

387.  Waste  of  gas  in  operating  oil  well 418 

388.  Inspection  of  oil  —  tests 418 

389.  Ordinance  regulating  storage  of  oil 419 

390.  Regulating  sale  of  naphtha  by  United  States 419 

391.  A  charter  is  a  contract 419 

392.  City  cannot  fix  rates  without  statutory  authority 421 

393.  Municipality   regulating  rates   after   ordinances   granted 421 

394.  Rates  fixed  in  ordinance  granting  franchise 422 

395.  Rates   fixed   by   city    in   its    consent   to   assignment   of   franchise 

right     424 

396.  Gas  company  accepting  provisions  of  subsequent  ordinance 424 

397.  Prohibition   to   change   for   specified   time 425 

398.  Police    power. —  Rates 426 

399.  Municipality  regulating  gas  companies 426 

400.  Power  to  change  rates  —  rates  established  must  be  reasonable.  .  .  .427 

401.  Gas     companies     quasi     public     corporations  —  rates     may     be 

changed    "^ 43  v 

402.  Same   continued 436 

403.  Same  continued  —  rates  may  be  changed 439 

404.  Municipality  delegating  power  to  change  rates 442 


^^"^  CONTENTS. 

SEC.  PAGE. 

405.  Annexing  territory  after  contract  made 443 

406.  Police  power  regulations 444 

CHAPTER  XXI. 

CONTRACTS   FOR   MUNICIPAL  LIGHTING. 

407.  Power  to  make  contract 445 

408.  Constitutional   or   statutory   limitations   on   indebtedness 447 

409.  Length    of    term    of    contract 451 

410.  Extending  term  of  contract 454 

411.  Bids  for  lighting 455 

412.  How    contract    executed 456 

413.  Liability  of  city  for  breach  of  contract  —  damages 457 

414.  Assignment  of   lighting  contract 459 

415.  Rescission    of    contract  —  breach 460 

416.  Discontinuing  use  of  gas 461 

417.  Changing  contract 462 

418.  Gas  furnished  not  covered  by   contract. —  No  contract 462 

419.  Municipality  extending  limits  after  making  contract 463 

420.  Municipality  receiving  light  under  a  void  contract 464 

421.  Contracts  void   for   uncertainty 465 

422.  Moonlight  schedule   465 

423.  The  price   to   be   paid 466 

424.  Free    light 466 

425.  Exemption  from  taxation  in  fixing  price  of  gas 468 

426.  Cost  of  light,  out  of  what  fund  paid 468 

427.  Appropriation  for  light,  when  necessary  to  validity  of  contract.  .  .468 

428.  Exhaustion  of  appropriation  as  a  defence 469 

429.  Tax  to  pay  for  gas  or  to  support  gas  plant 469 

430.  Assigning  cost  of  public  lighting  upon  abutting  property  —  Cost 

of  municipal  plant 470 

431.  Mandanms  to  compel  auditing  or  payment  of  bills 471 

432.  Action   to  recover   for  gas   supplied 471 

433.  Interest 472 

434.  Lamps  —  posts 472 

435.  United  States  revenue  tax 473 

436.  Waiver  as  to  quality  of  gas  or  light 474 

437.  Extending  mains,  failure  to  pay  for  light 474 

438.  Receiver   bound  by   contract 474 

439.  Municipal  officer  interested  in  contract 475 

CHAPTER  XXII. 

MONOPOLISTIC  GRANTS  AND  CONTRACTS. 

440.  Division  of  subject 477 

441.  Legislature  may  authorize  monopolistic  grants 478 

442.  Same  continued. —  Pennsylvania 481 


CONTENTS.  XIX 

SEC.  PAGE. 

443.  Same    continued 484 

444.  Statute   authorizing  exclusive   grant 48.5 

445.  A  grant  to  use  of  streets  to  exclusion  of  all  others  must  rest  on 

statutory  power 486 

446.  Grant  of  exclusive  franchise  strictly  construed 489 

447.  Legislature    cannot     revoke    monopolistic    clause    of     company's 

charter   493 

448.  Municipality  agreeing  not  to  compete  with  gas  company 49.5 

449.  Legislature  may  not  authorize  monopolistic  grants 498 

450.  Estoppel  to  contest  validity  of  monopolistic  grant  ratification.  .  .  .498 

451.  A   federal    question 499 

452.  Monopolistic  clause  does  not  avoid  whole  contract 500 

453.  Enjoining  passage  of  ordinance 500 

454.  Forfeiture   of   exclusive   franchise 500 

455.  Exclusive  franchise  for  artificial  gas  does  not  exclude  natural  gas. 501 

456.  Extension  of  time  for   completion  of  work.     Additional   require- 

ments      501 

457.  Gas  works  built  under  void  grant  or  franchise 502 

458.  Municipality's  right  to  purchase  existing  works  is  optional 502 

459.  Unlawful  combinations  between  gas  companies 503 

460.  Granting  privilege  to  use  streets  does  not  require  a  general  ordi- 

nance —  general  ordinance  regulating  streets 503 

461.  Contracts  for  light,  length  of  term 505 

462.  Dating  contract  ahead 509 

CHAPTEE  XXIII. 

STREETS    AND   HIGHWAYS. 

463.  Definitions  —  street  a  highway 512 

464.  Control  of  streets  or  highways 512 

465.  Use   for   private   purposes 513 

466.  Consent  of  municipality  to  occupy  streets  necessary 514 

467.  Right  to  a  franchise  not  property  of  municipality 516 

468.  When  consent  of  municipality  not  necessary 516 

469.  Nature  of  a  grant  to  occupy  streets  or  highways. —  A  mere  privi- 

lege      518 

470.  Nature  of  grant  to  occupy  streets  or  highways. — A  franchise 521 

471.  Acceptance  of  grant 522 

472.  Gas  company  must  comply  with  conditions  of  grant 523 

473.  Grant  to  occupy  streets  construed  strictly 524 

474.  What  streets  company  may  ocupy. —  Sidewalk 525 

475.  Territory  annexed  to  another  municipality  after  grant  made 525 

476.  New  streets,  right  to  occupy. —  No  streets  specified 526 

477.  Sale  or  assignm.ent  of  right  in  streets 527 

478.  Change  of  use  of  franchise. —  Natural  gas ?T 528 

479.  Ordinance   void. —  Estoppel 530 

480.  Gas   company   occupying   streets   is   subject  to   municipal   regula- 

tions    531 


XX  CONTENTS. 

SEC.  PAGE. 

481.  Injunction  to  protest  company's  rights  in  streets 534 

482.  Grant  before  companj'   is  organized 534 

483.  Length  of  grant  of  franchise 534 

484.  Termination  of  life  of  corporation  before  expiration  of  franchise.  .535 

485.  Consolidation  of  gas  companies ' 535 

486.  Town  becoming  a  city 536 

487.  Injunction  to  restrain  laying  of  pipes  in  streets 537 

488.  Pipe  laid  in  street  unlawfully  laid  out 537 

489.  Revocation   of   grant 538 

490.  Forfeiture  of  right  to  occupy  streets  for  failure  to  perfom  duty.  .539 

491.  Action   to   declare   forfeiture. —  Quo   warrants 539 

492.  Waiver  of  right  to  declare  forfeiture 541 

493.  Changing  grade  of   street 541 

494.  Tearing   up   streets. —  Obstruction. —  Indictment 542 

495.  Cutting  into  modern  pavements. —  Repairs. — Permission 543 

496.  Injury  to  pipes  in  repairing   streets 545 

497.  Support  of  gas  mains 546 

498.  Gas  boxes  in  street 547 

499.  Leaving  gasposts  in  street 547 

500.  Pipes  in  streets  not  an  additional  burden 548 

501.  Pipes  laid  in  navigable  river 548 

502.  Grant  right  to  use  suburban  highway. —  Compensation  to  abutting 

landowner    549 

503.  Condemnation  of  landowner's  interest  in  highway 550 

504.  Landowner  acquiescing  in  occupation  of  rural  highway. —  Injunc- 

tion.—  Estoppel    55() 

505.  Pipe  lines  in  country  highway  an  additional  burden  on  easement. 552 

506.  Consent  of   county  —  public  highways,   crossing 553 

507.  Revocation  of  license    to  use  highway 554 

508.  Abutting  landowner   removing  pipe  lines 554 

509.  Company   may  not  remove   pipes   unlawfully  laid   in  rural   high- 

way      554 

510.  Pipes  on  surface  of  highway  or  street 555 

CHAPTER  XXIV. 

MUNICIPALITY  SUPPLYING  GAS. 

511.  Municipality  may  be  authorized  to  own  gas  plant 557 

512.  Sufficiency  of  statute  to  authorize  municipality  to  furnish  gas  for 

commercial    purposes 559 

513.  Insufficiency   of   statute   to   authorize   a   municipality   to   furnish 

commercial    gas 562 

514.  Construction   of  municipal   charters 563 

515.  Municipality's    profit 564 

516.  Competition    with    private    plant 565 

517.  Election  to  authorize  purchase  or  erection  of  plant 5n"> 

518.  Municipality  must  be  sole  proprietor  of  plant. —  Taking  stock.  ..567 

519.  Right  to  purchase  plant  of  gas  company «''68 


CONTENTS.  ^^^ 

SEC.  PAGE. 

520.  Trustees  for  gas  works 569 

521.  Sale  of  municipal   plant 571 

522.  Municipality  may  lease  its  own  gas  works 572 

52.3.     Rules   and   regulations 573 

CHAPTER  XXV. 

THE  GAS  COMPANY  AND  CONSUMER. 

524.  No  requirement  at  common  law 574 

525.  Company    must    supply    gas 576 

526.  No    discriminations 578 

527.  Failure  of  supply  of  natural  gas. —  Discrimination 580 

528.  Supply  only  to  abutting  property  owners 581 

529.  Extension   of  mains  or  pipes 582 

530.  Inspection  of  premises 583 

531.  Mandamus  to  compel  supply 584 

532.  Mandamus  to  compel  furnishing  of  gas 586 

533.  Penalties  for  failure  to  supply  gas. —  Damages 586 

534.  Damages  for  failure  to  supply  gas. —  Sickness 589 

535.  Limiting  liability  for  failure  to  supply  gas 591 

536.  Application   for   gas 592 

537.  Rules   and   regulations 594 

538.  Subscribing  to  rules  and  regulations 595 

539.  Price  to  be  charged 596 

540.  Payment    in    advance 600 

541.  Deposits    601 

542.  Discrimination  in  use. —  Rates 602 

543.  Classification  of  customers. —  Rates 603 

544.  Recovering   back   overcharges 604 

545.  Collection  of  rents. —  Action 605 

546.  Collection   of   rents  by   distress 606 

547.  Shutting  off  gas  for  failure  to  pay 607 

548.  Injunction  to  prevent  cutting  off  gas  supply. —  Rates 612 

549.  Consumer's  right  to  discontinue  use  of  gas 613 

550.  Ownership  of  supply  pipe 315 

CHAPTER  XXVI. 

METERS  AND  MIXERS. 

551.  Definitions     617 

552.  Who  must  furnish 617 

553.  Control    of    meter 6iy 

554.  Unreasonable   requirements j,^.  ......  621 

555.  Inspection  of  meters  by  company 621 

556.  Official  inspection  and  tests 622 

557.  Officially  tested  meters  conclusive 622 

558.  Measurements  of  quantity  of  gas  used 623 


^^"  CONTENTS. 

SEC.  PAGE. 

559.  Delivery   of   gas 624 

560.  Rules  and  regulations  concerning 624 

561.  Extra  charg  s  for  meters  and  mixers. —  Government  tax 625 

562.  Requiring  use  of  a  certain  quantity  of  gas  per  month  or  pay  a 

meter    rent 6z0 

563.  Discrimination  in  use  of  meter 626 

564.  Removal  of  meters 627 

CHAPTER  XXVII. 

FIXTURES. 

ART. 

1.  Domestic  fixtures. 

2.  Trade  fixtures. 

3.  Oil  and  gas  lease  fixtures. 

565.  Division  of  subject 628 

ARTICLE  1. 
DOMESTIC  FIXTURES. 

566.  Intent  —  common  law  —  public  policy 628 

567.  Agreement  —  innocent  purchaser  —  injury  to  freehold 630 

568.  Gas  chandeliers  —  stoves  —  meters,   etc 631 

569.  Judicial  sale  of  premises 633 

570.  Gas  fixtures  may  pass  to  vendee 633 

ARTICLE  2. 
TRADE  FIXTURES. 

57L  Between  mortgagor  and  mortgagee 636 

572.  Gas  pipes  in  houses 636 

573.  Landlord  and  tenant 637 

574.  When  tenant  must  remove 63.S 

ARTICLE  3. 
OIL  AND  GAS  LEASE  FIXTURES, 

575.  Coal  and  mineral  leases 640 

576.  Oil  and  gas  lease  fixtures 642 

577.  Conveyance  or  mortgage  of  fixtures 644 

578.  Special    contract    controls 647 

579.  Gas  and  oil  pipe  lines 648 

CHAPTER  XXVIIL 

NUISANCES. 

580.  Scope  of  chapter 650 

581.  Pollution  of  well  or  spring  by  artificial  gas 650 


CONTENTS.  -^^^'^ 

SEC.  PAGE. 

582.  Pollution   of  running   streams G53 

583.  Pollution    of    subterranean    waters 658 

584.  Damages  occasioned  by  storing  or  bringing  oil  on  land (501 

585.  Gases  destroying  trees  and  vegetation 602 

586.  Noisome    smells 663 

587.  Odors  from  operation  of  oil  wells  and  works 665 

588.  Other  disagreeable  odors  in  neighborhood 660 

589.  Degree  of  annoyance. —  Question  for  jury 667 

590.  Gas  or  oil  well  near  house  or  building 668 

591.  Business  authorized  by  government  no  defence 671 

592.  Duty  of  owner  to  prevent  continuance  of  damages 672 

593.  Evidence     673 

594.  Injunction    673 

595.  Enjoining  erection  of  gas  plant 675 

596.  Former  recovery  a  bar 675 

597.  Indictment  for  nuisance 676 

598.  Waste  of'najtural  gas  or  oil 676 

CHAPTER  XXIX. 

LEAKS  AND  EXPLOSIONS. 

599.  Duty  of  gas  companies  in  general 680 

600.  Care  required  of   gas   companies 681 

601.  Gas  company  must  keep  its  gas  constantly  under  control 682 

602.  Degree  of  care  required  of  gas  company 685 

603.  Night    Avatchman 687 

604.  Gas  company's  act  or  neglect  must  have  caused  the  damage 688 

605.  Two  or  more  defendants  liable 691 

606.  Statute  permitting  recovery  although  there  is  no  negligence 694 

607.  Explosion  occasioned  by  a  violation  of  a  statute 695 

608.  Laying  gas  main  in  navigable  river 695 

609.  Overwhelming    disaster 696 

610.  Burden    of    proof 697 

611.  Presumption  of  negligence  does  not  arise  from  proof  of  explosion. 608 

612.  Presumption  of  negligence  arising  from  proof  of  explosion 702 

613.  Stop-cock  on  street  line 703 

614.  Intervening  agency 704 

615.  Inspection  of  pipes  or  mains ,.  .  .705 

616.  Duty  to  make  repairs  immediately. —  Available  force 709 

617.  Notice  of  leaks 710 

618.  Notice — failure  to  discover  place  of  leak 712 

619.  Notice  of  leak,  when  not  necessary  to  fix  liability 713 

620.  Evidence  of  notice  to  gas  company  of  danger  to  mains 7Ii 

621.  Evidence  of  other  leaks 714 

622.  Evidence  of  leaks > 715 

623.  Breaks  occasioned  by  ordinary  use  of  streets 716 

624.  Action  of  frost 716 

625.  Pipes  breaking  from  lack  of  support. —  Excavations  near  pipe  line.  717 


XXIV 


CONTENTS. 


SEC.  PAGE. 

626.  Property  owner's  duty  to  notify  gas  company  of  leaks 71  & 

627.  Company  misleading  plaintiff  as  to  extent  of  danger 721 

628.  Municipality    operating    plant 721 

629.  Gas  following  supply  pipe  from  main  —  percolating  through  soil. 

—  Sewer     722 

630.  Withdrawing  gas  from  mains  without  notice 723 

631.  Undue  pressure  in  mains 724 

632.  Evidence  of  undue  pressure  at  other  places 725 

633.  Explosion  caused  by  act  of  servant  of  gas  company 727 

634.  Company  undertaking  to  repair  consumer's  pipes  or  fixtures 728 

635.  Injury  to  shade  trees  —  shrubbery 729 

636.  Illuminating  gas  driving  sewer  gas  into  house 730 

637.  Explosion  caused  by  act  of  third  person 730 

638.  Gas  fitter  igniting  escaping  gas 733 

639.  Negligence  of  fellow  servant 735 

640.  Person   on  premises   by   license 730 

641.  Guest  or  inmate  of  family  may  recover  from  gas  company  where 

owner  is  negligent 737 

642.  Lessee's  right  of  action  against  the  gas  company 737 

643.  Third  person  causing  gas  to  escape,  liability 737 

644.  Gas  turned  on  by  owner  or  stranger 738 

645.  Landlord's   right  of  action  against  tenant 740 

646.  Tenant's  right  of  action  against  landlord 740 

647.  Owner  of  premises  liable  to  injured  person 741 

648.  Plaintiff  must  show  due  care  on  his  part. —  Contributory  negli- 

gence     742 

649.  Owner  removing  from  his  premises 743 

650.  Duty  of  property  owner  to  cut  off  supply  of  gas 744 

651.  Searching  for  leaks  with  a  light 745 

652.  Contributory  negligence  a  question  for  the  jury 749 

653.  Negligence  of  parent,  wife  or  servant 750 

654.  Contributory  negligence  of  tenant  may  bar  landlord, —  reversion- 

ary  interest 752 

655-.  Negligence    of    contractors. —  Lessee 753 

656.  Right  of  action  over 755 

657.  Liability    of    gasf.tter 755 

658.  Evidence  to  show  due  care  on  gas  company's  part 755 

659.  EiXpert  evidence  to  show  effect  on  electrolysis 757 

660.  Evidence  in  cases  of  inhalation  of  gas 757 

661.  Expert  evidence  on  inhalation  of  gas 759 

662.  Proof  of  effect  upon  growing  vegetation  or  grass 760 

663.  What  acts  of  negligence  a  question  for  the  jury 761 

CHAPTER  XXX. 

INJURIES  NEGLIGENTLY   CAUSED  BY  OIL  AND  GAS. 

664.  Scope    of    chapter 769 

665.  Fire  on  railroad  communicating  to  refinery 770 


CONTENTS.  XXV 

SEC.  PAGE. 

666.  Neglect  in  not  providing  stop-cock. —  Injury  to  servant 770 

667.  Injuries  from  shooting  wells 775 

668.  Oil  escaping  into  sewers 776 

669.  Injury  occasioned  by  exploding  gasoline  fire-pot 777 

670.  Use  of  false  brands. —  Explosion 778 

671.  Negligent    care   of   grounds. —  Fire    communicating    to    adjoining 

houses    778 

672.  Oil  escaping  from  and  exploding  refinery 779 

673.  Rescuer  injured  by  negligence  of  an  oil  or  gas  company 780 

674.  Minor  employee's  oil-soaked  clothes  catching  fire 781 

675.  Explosion  of  benzine  used  in  paint 781 

676.  Servant  of  oil  company  injured  by  defective  appliances 782 

677.  Injuries  to  servant  of  purchaser  —  sale  in  violation  of  statute.  .  .  .783 

678.  Sale  of  oil  of  low  fire  test,  explosion. —  Deception 785 

679.  Implied  warranty  m  sale  of  illuminating  oil 786 

680.  Gas   box   in   sidewalk 787 

681.  Negligence  of  contractor 787 

682.  Streets  rendered  dangerous  by  laying  gas  mains 788 

683.  Imperfectly  constructed  gas  building 789 

684.  Exploding  tank   injuring  servant 790 

685.  Servant  entitled  to  safe  place  in  which  to  work 791 

686.  Servant  injured  by  use  of  defective  ladder 792 


CHAPTER  XXXI. 

INSURANCE. 

687.  Extent  of  discussion 795 

688.  Conflict    between    rider    or    written    part    and    printed    part    of 

policy 795 

689.  "On  the  premises." 795 

690.  "Contiguous"    to    insured   building 797 

691.  Oil   for   illumination 798 

692.  Time   of   filling   lamps 798 

693.  Failure  to  extinguish  lamps 799 

694.  The    oil    prohibited 799 

695.  Prohibited  user  not  occasioning  loss 801 

696.  Owner  himself  must  violate  terms  of  policy  —  tenant ,...802 

697.  Explosions  —  no  clause  of  exemption 802 

698.  Explosions  of  oil  or  gas 804 

699.  Failure  to  disclose  use  of  oil 806 

700.  Warranty  —  hazard  not  increased 806 

701.  Particular    use    allowed 807 

702.  Extent  of  prohibited  usage 807 

703.  Occasional  use  of  hazardous  articles .V: 807 

704.  Increase  of  risk 808 

705.  Proof  of  custom  or  the  usual  practice 809 

706.  Implied  consent  to  prohibited  use. —  Custom 810 


^^^^  CONTENTS. 

SEC.  PAGE. 

707.  "Storing" — "keeping"    811 

708.  Store     814 

709.  Grocery     815 

710.  Watchmaker 816 

711.  Furniture  store  —  wagonshop • 816 

712.  Factory     817 

713.  Drug  store 81? 

714.  Laundry    818 

715.  Patent  leather  factory 818 

716.  Painter  —  paintshop  or  factory 819 

717.  Torch  to  remove  paint  from  house 819 

718.  Cleaning  clothes. —  Destroying  vermin 821 

719.  Cleaning  or  lubricating  machinery 821 

720.  Waiver  by  knowledge  of  acquiescence  in  use  of  building 821 

721.  Waiver  by  knowledge  of  acquiescence  in  use  of  building  continued .  823 

722.  Waiver  by  receiving  premium  with  Icnowledge  of  prohibited  user.  .825 

723.  Waiver  by  adjusting  loss  or  accepting  proof  without  objection.  .  .  .825 

724.  Insurance  company's  right  of  action  to  recover  damages.     Effect 

of  insurance  on  right  of  action 820 

725.  Gas  company  causing  fire  liable  to  insurance  company 827 

726.  Inhaling  gas,  accident  or  life  insurance  policy 828 

CHAPTER  XXXII. 

TAXATION. 

727.  Scope  of  chapter 831 

728.  When  corporate  stock  taxed  property  of  company  exempt 831 

729.  Exempt  as  a  manufacturing  company 832 

730.  Gas  mains  of  city  plant  taxed  as  personal  property 832 

731.  Assessing  franchise 834 

732.  Valuation  of  stock  —  certificates  as  to  surplus 834 

733.  Exemption  of  municipalities  from  taxation 835 

734.  Rates  charged  consumers  not  taxes 835 

735.  Cost   of    inspection    of   meters 835 

736.  Object  of  tax  —  Ohio  statute  unconstitutional 836 

737.  United   States  reventie 839 

738.  Set  off ._ 837 

739.  Product  in  pipe  line.     Interstate  commerce 837 

740.  Exemption  from  taxation 838 

741.  Taxes  on  leases  and  minerals 839 

CHAPTER  XXXIII. 

MISCELLANEOUS. 

742.  Artificial  gas  statutes  do  not  relate  to  natural  gas.    842 

743.  Larceny    of    gas 842 

744.  "Shut  off  gas,"  meaning 843 


CONTENTS,  xxvii 

SEC.  PAGE. 

745.  Contract  for  purchase  of  oil 844 

746.  Term  "  fire  proof  oil  "  as  a  trademark 844 

747.  Gas.  company's  liability  for  supplies 844 

748.  Gas  not  a  necessary  of  life 845 

APPEXDIX. 

I'orms  of  gas  and  oil  leases  and  agreements 840 

IXDEX. 

index     874 


TABLE  OF  CASES. 


(References 


Abendroth  v.  Greenwich    (29   Conn. 

247;  29  Conn.  356),  563 
Aeheson  v.   Stevenson    ( 146   Pa.   St. 

299;   23  Atl.  Rep.  331,  336),  33 
Ackley  v.  Phoenix  Ins.  Co.   ( 25  Mont. 

272;   64  Pac.  Rep.  665),  811,  812, 

818 
Acklin  V.  Waltermier  (10  Ohio  C.  C. 

Dec.  629;  19  Ohio  C.  C.  Rep.  372), 

226,  359,  360 
Acme  Coal  Co.  v.   Stroud    (5   Leek. 

Leg.  News   (Pa.)    169),  218 
Acton,  Ex  parte    (4   L.  T.    (N.   S.) 

261),  633 
Adair    v.    Southern,    etc.,    Ins.    Co. 

(107  Ga.  297;   33  S.  E.  Rep.  78), 

802 
Adams  v.  Briggs  Iron  Co.    (7  Cush. 

361),   77,  299 
Adams  v.  Harrington   (114  Ind.  66; 

14  N.  E.  Rep.  603),   512 
Adams   v.    Ore    Knob,    etc.,    Co.     (7 

Fed.  Rep.  634).  76.   192.   199 
Adams  v.  Stage    (18  Pa.  Super.  Ct. 

Rep.  308),  107.  114,  115.  275 
Adams    Express    Co.    v.    Cincinnati 

Gaslight    &    Coke    Co.     (10    Ohio 

Dec.  389;   21  Wkly.  L.  Bull.   18), 

586.   607.   627 
Aderhold    v.    Oil    Well    Supply    Co. 

(158    Pa.    St.    401;    28    Atl.    Rep. 

22),   64.    112,   224,   226.  232,   2.34, 

236,  267,  269 
Adrian  W.  W.  v.  Adrian   (64  Mich. 

584;  31  N.  W.  Rep.  529),  453 


are  to  pages.) 

.^tna   Ins.   Co.   v.    Boon    (95   U.   S. 

117),  803 
.Etna    Ins.    Co.    v.    Humboldt,    etc., 

Ny.   Co.    (3   Dill.   2),   827 
African    Territories    v.    VVallington 

([1898]  A.  C.  309;  67  L.  J.  Q.  B. 

470;  78  L.  T.  426;  46  W.  R.  545), 

315 
Agerter  v.  Vandergrift   (138  Pa.  St. 

576;    27    W.    N.    C.    230;    21    Atl. 

Rep.  202),  183,  193 
Agna  Pura  Co.  v.  Las  Vegas   ( 10  N. 

M.    6;    60    Pac.    Rep.    208;    50    L. 

R.   A.   224),  428-440 
Ahrns  v.   Chartiers  Valley  Gas   Co. 

(188    Pa.    St.    249;    41    Atl.   Rep. 

739),  101,  127,  132,  189,  278,  327 
Akin  V.  Marshall  Oil  Co.  (41  Atl. 

Rep.  748;  188  Pa.  St.  614;  188 

Pa.  St.  602),  109,  201,  225,  234, 

245,  247,  254.  258,  307,  327 
Akron  Water  Works  Co.  v.  Brown- 
less   ( 1  Ohio  Dec.  1 ;  10  Ohio  C.  C. 

620),  461 
Albert   v.   Davis    (49    Neb.    579;    68 

N.   W.  Rep.  945),   618 
Alden's   Appeal    (93    Pa.    St.    182), 

329 
Alderson    v.    Alderson    (46    W.    Va. 

242;  33  S.  E.  Rep.  228),  290 
Alexander  v.  Ellison   (79  Ky.  148), 

308 
Alexandria,    etc.,    Co.    v.    Irish    ( 16 

Ind.    App.    534;    44    N.    E.    Rep. 

680),   53 
Alexandria,   etc.,  ^.  v.   Painter    ( 1 

Ind.    App.    587;    28    N.    E.    Rep. 

113),  725 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Alexandria  Mining,  etc.,  Co.  v.  Irish 

(16  Ind.  App.  534;  44  N.  E.  Rep. 

680),   695-698-705,   713,   714,   723, 

725 
Algonquin    Coal    Co.    v.    Northern, 

etc.,  Co.   (162  Pa.  St.  114;  28  Atl. 

Rep.  402),  63 
Allegheny  v.  People's,  etc.,  Co.   (172 

Pa.  St.  632;  26  Pittsb.  L.  J.    (N. 

S.)  410;  37  W.  N.  C.  442;  33  Atl. 

Rep.  704),  523 
Alleglieny    Heating    Co.    v.    Rohan 

(118    Pa.    St.    223;    11    Atl.    Rep. 

789),   735-768 
Allegheny   Oil    Co.   v.    Snyder    (106 

Fed.  Rep.  764;   45  C.  C.  A.  604), 

84,  85,   104,  120,  145,  146 
Allegheny   Oil   Co.   v.   Bradford   Oil 

Co.   (21  Hun  26,  affirmed  86  N.  Y. 

638),  190 
Allegheny   Oil   Co.   v.   Bradford   Oil 

Co.    (86   N.   Y.   638,  affirming   21 

Hun  26),  199,  200 
Allen  V.  Aeyrot  Factory  ( 82  Ga.  76 ; 

8  S.  E.  Rep.  68),  790 
Allen    V.    New    Gas    Co.     (L.    R.    1 

Exch.   Div.   251;    45   L.   J.    Exch. 

790),  790 
Allen  V.  Palmer    (136  Pa.  St.  556; 

26    W.    N.    C.    514;    20    Atl.    Rep. 

516),  220 
Alliance,    etc..    Gas    Co.    v.    Dublin 

(Gas  Jr.,  June  26,   1900,  p.  1733, 

and  July  10,  1900,  p.  100;  49  Gas 

Jr.   765,   811;    50   Gas  Jr.   1018), 

545 
Alliance,  etc.,  Co.  v.  Taaffe   (27  Gas 

J.   206),   624 
Allison's  Appeal    (77   Pa.  St.   221), 

117.  120 
Allison    V.     Coal     Creek,     etc.,     Co. 

(3  Pick.  60;  9  S.  W.  Rep.  (Tenn.) 

226),  278 
Allison   Manufacturing    Co.    v.    Mc- 

Cormick  (118  Pa.  St.  519;  12  Atl. 

Rep.   273),   781 
Aloway   v.    Braine    (26   Beav.    575; 

33  L.  T.   100),  314 


Alton  Ry.,  etc.,  Co.  v.  Foulds  (81111. 

App.   322,  affirming   190  HI.  367; 

60  N.  E.  Rep.  537 ) ,  686 
Altoona     v.     Shellenberger      (6     Pa. 

Dist.   Rep.  544),  573,  610 
Altoona  Gas  Co.   v.  Gas  Co.  of  Al- 
toona  (17  Pa.  Co.  Ct.  Rep.  662), 

530 
American,  etc.,  Co.  v.  State  (46  Neb. 

194;  64  N.  W.  Rep.  711;  30  L.  R. 

A.  447),  577,  600,  610 
American   Fire   Ins.   Co.   v.   Nugent 

(7  Ky.  Law  Rep.  597),  814,  822 
American,    etc.,    Ins.    Co.    v.    Green 

(16  Tex.  Civ.  App.  531;  41  S.  W. 

Rep.   74),  809,   811 
American,  etc.,  Asn.  v.  Yount    (101 

U.   S.   352),   390 
American    Steam,    etc.,    Ins.    Co.    v. 

Chicago,   etc.,   Co.    (57    Fed.   Rep. 

294;  21  L.  R.  A.  572),  803 
American      Trust      Co.      v.      North 

Quarry    Co.     (31    N.    J.    Eq.    89), 

370,  371 
American  Window  Glass  Co.  v.  Wil- 
liams  (66  N.  E.  Rep.   (Ind.  App.) 

912),  33,  145,  148,  166,  172,  174, 

176,  196,  197,  211,  217,  257 
American    W.    W.    Co.    v.    Farmers' 

Loan  and  Trust  Co.  (73  Fed.  Rep. 

956;   20   C.   C.  A.   133;   36   U.   S. 

App.  563),  381,  460-527 
Ames  V.  Ames    (160  111.  599;  43  N. 

E.  Rep.   592),  298 
Aminous  V.  South   Penn.  Oil  Co.  (47 

W.  Va.  610;  35  S.  E.  Rep.  1004), 

123,  210 
Ampt  V.   Cincinnati    (6   Ohio  N.   P. 

401),   515,   548 
Ampt  V.  Cincinnati  (56  Ohio  St.  47; 

37  Wkly.  L.  Bull.   161;   46  N.  E. 

Rep.  69 ;  35  L.  R.  A.  737,  modify- 
ing 12  Ohio  C.  C.  119;  1  Ohio  C. 

D.   356),   568 
Anaconda,    etc.,    Co.   v.    Butte,    etc., 

Co.    (17  Mont.  519;   43  Pac.  Rep. 

924),  340,  345 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Anderson  v.  Hapler  (34  111.  435),  44 
Anderson  v.  Savanah   (69  Ga.  472), 

786 
Anderson  v.   Standard  Gaslight  Co. 

(17    N.   Y.    Misc.    625;    40   N.    Y. 

Siipp.  671),  687-709,  712,  721,  728 
Andrew    v.    National    Foundry     (76 

Fed.  Rep.   166;   22  C.  C.  A.   110; 

39   L.   R.  A.   139;   46  U.   S.  App. 

281;   77  Fed.  Rep.  774;    23  C.  C. 

A.  454;  46  U.  S.  App.  619),  380, 

381 
Andrews   v.    North   River,   etc.,    Co. 

(23  N.  Y.  Misc.  Rep.  512;   51  N. 

Y.   Supp.  872),   588,   596 
Andrews    v.    Senter    (32    Me.    394), 

199 
Anoka    W.    W.,    etc.,    Co.    v.    Anoka 

(109  Fed.  Rep.  580),  446-447-502 
Appeal   of   Alegheny    (11   Atl.   Rep. 

(Pa.)    658),  518 
Apfelbach   v.   Consolidated   Gas   Co. 

(54  Atl.  Rep.   (Pa.)  359),  757-758 
Appleby  v.  Astor  Fire  Ins.  Co.    (54 

N.  Y.  253),  809 
Archer  v.   Merchants,   etc.,   Co.    (43 

Mo.  434),  817 
Ardesco   Oil   Co.  v.  Gilson    (63   Pa. 

St.   146),   782 
Argall  V.  Pitts   ( 78  N.  Y.  239 ) ,  367 
Arkell    v.    Commerce    Ins.    Co.     (69 

N.    Y.     191;     25    Am.    Rep.     168, 

affirming  7  Hun  455),  796-798 
Arnibuster  v.   Auburn   Gaslight  Co. 

(18  N.  Y.  App.  Div.  447;   46  N. 

Y.  Supp.   158).  682-687,   729,  826 
Armstrong  v.  Caldwell    (53  Pa.   St. 

284),  321,  325 
Arnold  v.  Stevens     (24    Pick.    106), 

323 
Ascha  V.  Fitch   (46  Pac.  Rep.   (Cal.) 

298),  362 
Ashenfelter    v.    Williams     (7    Colo. 

App.  332;  43  Pac.  Rep.  664),  340 
Asher  v.  Hutchinson  Water,  etc..  Co. 

(71  Pac.  Rep.  813),  534 
Aspen   Mining,    etc.,   Co.   v.    Rucker 

(28  Fed.  Rep.  220),  298 


Astor  V.  Hoyt  (5  Wend.  603),  365 
Astor   V.   Miller    (2    Paige   Ch.   08), 

365 
Atchison    St.    Ry.    Co.    v.    Missouri 

Pacific  Ry.  Co.    (31   Kan.   600;   3 

Pac.  Rep.  284),  488 
Atherton  v.  Betel,  etc.,  Ins.  Co.    (91 

Me.  289;   39  Atl.  Rep.  1006),  808 
Atkinson  v.  New  Castle  W.  W.  Co. 

(L.  R.  2  Exch.  Div.  441;  46  L.  J. 

Exch.  775;   25  W.   R.   794;   36  L. 

T.    761,    reversing   L.    R.    6    Exch. 

Div.  404;   20  W.  R.  35),  587 
Atlanta   v.   Gate   City  Gaslight  Co. 

(71  Ga.  106),  516 
Atlantic  Water  Works  Co.  v.  Atlan- 
tic City    (39  N.  J.  Eq.  367),  481 
Atlantic  City  W.  W.  Co.  v.  Atlantic 

City  (48  N.  J.  L.  378;  6  Atl.  Rep. 

24),  479,   498 
Atlantic  City   Water   Works   Co.  v. 

Consumers'   Water   Co.    (44  N.  J. 

Eq.  427;    15  Atl.  Rep.   581),  481- 

492-498 
Atlantic    City   W.    W.    Co.   v.   Reed 

(50    N.   J.   L.    665;    15   Atl.    Rep. 

10),  454.  468,  469,  499 
Atlantic   Dock,   etc.,   Co.  v.   Leavitt 

(54  N.  Y.  35;    13  Am.  Rep.  556), 

102 
Attersoll  v.  Stevens   (1  Taunt.  183), 

42 
Attorney-General  v.  Cambridge  Con- 
sumers' Gas  Co.   (L.  R.  4  Ch.  71; 

38  L.  J.  Ch.  94;  19  L.  T.   (N.  S.) 

508;   17  W.  R.  145,  overruling  L. 

R.   6    Eq.    282;    38    L.   J.    Ch.    94. 

Ill;    17   W.   R.    145;    17   Gas  Jr. 

427,  593,  867),  537,  543,  674 
Attorney-General  v.  Gaslight  Co.   (7 

Ch.  Div.  217;   47  L.  J.  Ch.   534; 

37  L.  T.  746;  26  W.  R.  125),  665, 

671,  674 
Attorney-General       v.       Manchester 

Corporation     ^893]    2    Ch.    87; 

62  L.  J.   Ch.  459;    68   L.  T.  608; 

41  W.  R.  459;  57  J.  P.  343;  3  R. 

427),  663,  674 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Attorney-General    v.    Mayor    of    St. 

Helens    (W.  N.    (1870)    150),  569 
Attorney-General    v.     Sheffield    Gas 

Consumers'  Co.   (3  De.  Gex.  McN. 

and  G.   304;    17   Jur.   677;   22  L. 

J.    Ch.    811;    2    Gas   J.    396,   419; 

19    E.   L.   and    Eq.   639;    1    W.   R. 

185),   537-542 
Atwood  V.   Small    (7   B.  &  C.   390), 

345 
Audenried   v.   Woodword    (4    Dutch. 

(N.  J.)    265),  641 
Aurora  Gaslight  Co.  v.  Bishop    (81 

111.  App.  493),  713,  716,  717,  730, 

750 
Austin  V.  Austin  Gaslight  Co.    (69 

Tex.  180;  7  S.  W.  Rep.  200),  835 
Austin   V.    Bartholomew    ( 107    Fed. 

Rep.  349;   46  C.  C.  A.  327),  460- 

528 
Austin  V.   Cambridgeport    (21    Pick. 

215),   185 
Austin  V.  Huntsville  Coal,  etc.,  Co. 

(72   Mo.    535),    76 
Avon    Coal    Co.    v.    McCulloch     (59 

Md.  403;   43  Am.  Rep.  560),  620 
Aye  V.  Philadelphia  Co.  (193  Pa.  St. 

457;  44  Atl.  Rep.  556),  104,  127, 

132 

B 

Babcock    v.    Fitchburg    R.     R.    Co. 

(140   N.   Y.    308;    35   N.    E.   Rep. 

596),   701 
Babcock   v.    Scoville    (56   111.    461), 

238 
Babcock    v.    Stewart     (58    Pa.    St. 

179),    351 
Bacon  v.  U.  S.,  etc.,  Co.   (123  N.  Y. 

304 ;  25  N.  E.  Rep.  399 ;  G.  L.  R. 

A.   617,   reversing  3   N.   Y.   Supp. 

237),  828 
Badger  Lumber  Co.  v.  Marion,  etc., 

Co.    (48   Kan.    187;    30  Pac.  Rep. 

117,  affirming  29  Pac.  Rep.  476), 

363 
Badger    v.    Platte     (OS    X.    H.    222; 

44  Atl.  Rep.  296),  827 


Bagley  v.  Consolidated  Gas  Co.   (13 

N.    Y.    Misc.    Rep.    6;    34    N.    Y. 

Supp.   187),  792 
Bailey  v.  Citizens'  Gaslight  Co.   (27 

N.  J.  Eq.   196),   536 
Bailey  v.  Fayette  Gas  Fuel  Co.   ( 193 

Pa.  St.  175;  44  Atl.  Rep.  251;  44 

W.  N.  C.  505),  577,  578,  597,  603 
Bailey  v.  Haines  (15  Q.  B.  533;  19 
'  L.  J.  Q.  B.  73;  14  Jur.  835),  345 
Bailey  v.  Philadelphia    (184  Pa.  St. 

594;    41    W.    X.    C.    529;    39   Atl. 

Rep.  494;  39  L.  R.  A.  837,  affirm- 
ing 6  Pa.  Dist.  Rep.   727;   20  Pa. 

Co.   Ct.   Rep.    173),   559-569,    572, 

573 
Baird  v.  Reilly    (92  Fed.  Rep.  884), 

791 
Baker  v.  Atherton    (15   Pa.  Co.  Ct. 

Rep.  471),  370-645 
Baker   v.   Brennan    (12   Ohio   C.   D. 

211;  22  Ohio  C.  D.  241),  307,  349 
Baker  v.    Clark    (128   Cal.    181;    60 

Pac.   Rep.    677),   81 
Baker  v.  Dale   (3  Pitts.  L.  J.  190), 

72 

Baker  v.  Hart  (123  X.  Y.  470;  25 

X.  E.  Rep.  948).  49 
Baker  v.  Kellogg  (29  Ohio  St.  663), 

103 
Baker  v.  McDowell  (3  W.  &  S.  358), 

329 
Baldwin    v.    Xorth     Branford     (32 

Conn.  47),  563 
Baldwin   v.   Ohio  Oil   Co.    (13   Ohio 

Cir.    Ct.   Rep.    519;    7    Ohio    Dec. 

.50),  127,  202,  209 
Balfour  v.  Russell   (167  Pa.  St.  287; 

36   W.   X.   C.   225;    31    Atl.   Rep. 

570),    126,    152,    154 
Ball  V.  Xye   (99  Mass.  582),  661 
Ballard  v.   Tomlinson    (29   Ch.  Div. 

115;    54  L.  J.   Ch.  454;    52  L.  T. 

942;  33  W.  R.  533;  49  J.  P.  692; 

24   Am.  L.  Reg.  634),  661 
Baltimore  Gas  Co.   v.   Colliday    (25 

Md.  1),  576,  590,  597,  607,  609 


TABLE    OF    CASES. 


(Reterences  are  to  pages.) 


Baltimore   Consolidated   Gas   Co.   v. 

Getty   (54  Atl.  Rep.    (Md.)    660), 

709.  749 
Baltimore,    etc.,    Co.    v.    People    (66 

N.  E.  Rep.   (111.)   246),  447,  566 
Bank  of  Augusta  v.    Earl    (13   Pet. 

519,    595),    519 
Bank  of  Ogdensburgh  v.  Arnold    (5 

Paige  Ch.  38),  366 
Bankart   v.   Tennant    (L.    R.    1    Eq. 

141;    39  L.  J.   Ch.   809;    23  L.  T. 

137;    18  W.  R.   639),  315 
Barclay,  Ex  parte,  In  re  Joyce    (L. 

R.  9  Ch.  App.  576),  647 
Barker  v.  Dale    (3  Pittsb.   190),  97 

105 
Barksdale     v.     Adairston     (81     Va. 

764),   81,   82,   83 
Barksdale   v.   Parker    (87   Va.   141; 

12  S.  E.  Rep.  342).  78 
Barmford  v.  Lehigh   Zinc  and  Iron 

Co.    (33  Fed.  Rep.  677),  85 
Barnard   v.   National   Fire   Ins.   Co. 

(27  Mo.   App.  26),  815 
Barney    v.    Burstenbinder     ( 7    Lans. 

210),  405 
Barnhart  v.  Lockwood   (152  Pa.  St. 

82;  31  W.  N.  C.  209;  25  Atl.  Rep. 

237),   73,   148,   163,   166,   168,  210 
Barnsdall   v.   Boley    (119   Fed.   Rep. 

191).   98.   99.    101,    102,   114,   182, 

189,  190,  197,  198,  206,  217,  290 
Barnum  v.  Landon   (25  Conn.  137), 

301 
Barrett   v.   McAllister    (33    W.   Va. 

738;   11  S.  E.  Rep.  220),  89,  92 
Barrickman  v.  Marion  Oil  Co.    (45 

W.  Va.  634:  32  S.  E.  Rep.  327;  44 

L.  R.  A.  92).  687,  691,  701,  709, 

725,   726 
Barrs  v.  Lea  (33  L.  J.  Ch.  437),  273 
Barry  v.  Worcester  ( 143  Mass.  476  ; 

10  N.  E.  Rep.  186),  82 
Bartholomew    v.    Austin     (85    Fed. 

Rep.  359;   52  U.  S.  App.  512;  29 

C.  C.  A.  568),  480,  491,  498 


Bartholomew    v.    Merchants'    Insur- 
ance Co.  (25  la.  507;  96  Am.  Dec. 

65),    822 
Bartlett  v.  Boston  Gaslight  Co.  (117 

Mass.   533),    844 
Bartlett    v.     Boston     Gaslight     Co. 

(122  Mass.  209;    117   Mass.  533; 

19  Am.  Rep.  421),  711,  720,  737, 

741,   746,   749,   752,   753 
Bartley    v.    Phillips     (179     Pa.    St. 

175;  36  Atl.  Rep.  217;  165  Pa.  St. 

325;  36  W.  N.  C.  19;  30  Atl.  Rep. 

842),  114.  161,   184,  186 
Bartley    v.    Phillips     (165    Pa.    St. 

325;   30  Atl.  Rep.  842),  160,  161, 

216 
Bartlett  v.   Phillips    (4  De  G.  &  J. 

414),  288 
Barton  Coal  Co.  v.  Cox   (39  Md.  1), 

49 
Bastian    v.    Keystone   Gas    Co.     (27 

N.   Y.   App.    Div.    584;    50   N.   Y. 

Supp.  537;  4  Am.  Neg.  Rep.  529), 

681,   682,   686,   708,   713,  728 
Batchelder    v.    Tunbridge,    etc.,    Co. 

(84  L.  T.  765;  65  J.  P.  680),  672 
Batcheller  v.   Tunbridge   Wells   Gas 

Co.    (65  J.  P.  680;  84  L.  T.  765), 

653,  695 
Batchelor    v.    Yates     (38    Ch.    Div. 

112).  647 
Bateman  v.  Bluck    ( 14  Eng.  L.  and 

Eq.    69),    512 
Bath    Gaslight    Co.    v.    Claffy     (74 

Hun    638;    26   N.   Y.    Supp.   287), 

420,   426,   527,   577,   578 
Baumgardner  v.  Bro\^'Tiing  ( 12  Ohio 

Civ.   Ct.   Rep.   73;    5    Ohio   C.    D. 

394),  166,  208 
Baumgardner  v.   Ins.  Co.    ( 1   W.  N. 

C.   119),  817 
Baxendole    v.   McMurray    (L.    R.    2 

Ch.   790;    16  W.  R.  32),  674 
Bear  River,  et^.  Co.  v.  N.  Y.  Mining 

Co.  (8  Cal.  327),  654 
Beatty  v.  Gregory    (17   la.   109;   85 

Am.  Dec.  546),  83,  160 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Beaufort   (Duke)   v.  Bates   (3  De  G. 

F.  and  J.  381;  31  L.  J.  Ch.  481), 

648 
Beck   V.    O'Conner    (21    Mont.    109; 

53  Pac.  Rep.  94),  308 
Beckner  v.  Werner  (98  Pa.  St.  555), 

209 
Bedding    v.    Imperial    Gaslight    Co. 

(7  Gas  J.  418),   590 
Bedford's  Appeal   (126  Pa.  St.  117; 

17  Atl.  Rep.  538),  291 
Bedford  v.  Terhune   (30  N.  Y.  457), 

246 
Begbie    v.    Fenwick     (L.    R.    8    Ch. 

App.  1075),  647 
Behling  v.   Southwestern,   etc.,   Pipe 

Lines    (160   Pa.   St.   359;    28    Atl. 

Rep.   777),  401 
Beinville  Water  Supply  Co.  v.  Mo- 
bile   (186  U.  S.  212;   22  Sup.  Ct. 

Rep.  820,  affirming  175  U.  S.  109; 

20    Sup.    Ct.    Rep.    40),   478,   494, 

502 
Beittenmiller    v.    Bergner,    etc.,    Co. 

(12  Atl.  Rep.    (Pa.)    599),  736 
Bel  V.  Balls   ([1897]   1  Ch.  663;  66 

L.  J.  Ch.   397;    76  L.  T.  254;    45 

W.  R.  378),   314 
Belfast   Water    Co.    v.    Belfast    (92 

Me.  52;  42  Atl.  Rep.  235),  542 
Bell  V.  Truit  (9  Bush.  257),  130 
Bellaire   Goblet   Co.   v.    Findlay    (5 

Ohio  Cir.  Ct.  Rep.  418),  431,  570, 

597,   607,  610 
Bellany  v.  Debenham   ([1891]   1  Ch. 

412;    60  L.  J.   Ch.   166;    64  L.  T. 

468;    39  W.  R.  257),  315 
Belvidere    Gaslight    Co.    v.    Jackson 

(81  111.  App.  424),  673,  682,  687, 

694,  703,   707 
Benaivder  v.  Hunt   (79  Tex.  383;  15 

S.   W.   Rep.  396),   109,  210 
Benedict   v.    Construction,    etc.,    Co. 
(49    N.   J.    Eq.    23;    23   Atl.   Rep. 

485).  412,  414,  415,  426 
Benfield  v.  Vacuum  Oil  Co.   (75  Hun 

209;   27  N.  Y.  Supp.  16),  783 


Benfieldside   L.    B.    v.    Consett    Iron 

Co.    (3   Exch.   Div.   54;    47   L.   J. 

Exch.  491;    38  L.  T.   530;   26  W. 

R.   114),  547 
Bennett  v.   North   British,  etc.,   Co. 

(8   Daly   471;    81    N.   Y.   273;    37 

Am.  Rep.   501),   798 
Bennett    v.    East    Chester    Gaslight 

Co.    (40  N.  Y.  App.  Div.   169;   57 

N.  Y.  St.  Rep.  847),  602,  610 
Bennett  v.  North   British,  etc..  Ins. 

Co.   (8  Daly  471),  53 
Bennett   v.   Thompson    (13   Ired.   L. 

146),  48 
Bennington  v.  Smith    (29  Vt.  254), 

513 
Benson    v.    Allegheny    Heating    Co. 

(188    Pa.    St.    614;    41    Atl.    Rep. 

729),  691 
Benson  v.  Maiden,  etc.,  Co.   (6  Allen 

149),  549 
Benson,   etc.,   Co.   v.   Alta,   etc.,   Co. 

(145  U.  S.  428;   12  Sup.  Ct.  Rep. 

877),   48 
Bentley  v.  Bates    (4  Y.  &  C.  Exch. 

182;    9    L.    J.    Exch.    30;    4    Jur. 

552),  373,   378 
Bently  V.  Lumbermen's  Ins.  Co.  (191 

Pa.   St.   276;    43   Atl.   Rep.   209), 

808 
Benton    v.    Elizabeth     (61    N.    J.    L. 

693;  40  Atl.  Rep.  1132,  affirming 

39  Atl.  Rep.   683),  531,  532,   533 
Berger    v.    Hoerner     (36    111.    App. 

360),  640 
Berger  v.  Minneapolis,  etc.,  Co.    (60 

Minn.  296;   62  N.  W.  Rep.  330), 

062,  666 
Berns   v.   Gaston   Coal   Co.    (27    W. 

Va.  285),  725 
Berridge  v.  Ward   (10  C.  B.   (N.  S.) 

400;    30  L.   J.   C.   P.   218;    7  Jur. 

(N.  S.  876;   2  F.  &  F.  208),  333 
Berry  v.  Woodburn    (107   Cal.  504; 

40  Pac.  Rep.   802),   344 
Bestwiok  v.  Druesby  Coal  Co.    (129 

Pa.   St.    592;    18  Atl.    Rep.   538), 
161,    168 


TABLE    OF    CASES, 


(References  are  to  pages.) 


Bethune   v.   Hughes    (28    Ga.    560), 

488 
Bettman    v.    Harness     (42    W.    Va. 

443;  26  S.  E.  Rep.  271;  36  L.  R. 

A.    566),    51,    98,    120,    173,    182, 

289 
Bettman   v.    Shadle    (22    Ind.    App. 

542;    53    N.    E.    Rep.    662),    189, 

212,   217,   267 
Bewick  v.  Fletcher    (41  Mich.  625), 

641 
Bewick   v.   Muir    (83    Cal.    373;    23 

Pac.   Rep.   390),   354,   362 
Beyer  v.   Consolidated   Gas  Co.    (44 

N.   Y.   App.   Div.    158;    60   N.   Y. 

Supp.  628),  724,  757,  765 
Bicknell    v.    Austin    (62    Fed.    Rep. 

432),  101 
Biddle    V.    Wayne    \V.    \Y.    Co.     (7 

Del.  Co.  Rep.  161),  552 
Bienville  Water,  etc.,  Co.  v.  Mobile 

(112  Ala.  260;   20   So.  Rep.   742; 

33  L.  R.  A.  59),  609,  612 
Billings  V.  Alfsen  Mining,  etc.,  Co. 

(51  Fed.  Rep.  338),  174 
Billings  V.   Taylor    (10   Pick.   460), 

287 
Binghamton   Bridge    (3    Wall.    51), 

493 
Binkley  v.   Forkner    (117   Ind.   176; 

19  N.  E.  Rep.  753),  629,  631 
Birch  V.  Wright   ( 1  T.  R.  378),  367 
Bird  V.  Crabb    (30  L.  J.  Ex.  318), 

648 
Birmingham,    Ex   parte    (L.    R.    11 

Eq.   615;   L.  R.   11   Eq.  204),  606 
Birmingham  Fire  Ins.  Co.  v.  Kroe- 

gher   (83  Pa.  St.  64;  24  Am.  Rep. 

147),  810,  816.  823,  824 
Birmingham,    etc.,    Co.    v.    Ratcliffe 

(L.  R.  6  Exch.  224),  605 
Bishop   V.   North    Adams   Fire   Dis- 
trict   (167    Mass.    364;    45    N.   E. 

Rep.  925),  391 
Bishop  of  Winchester  v.  Knight    (1 

P.  Arns.  406),  277 


Bissell   V.   Foss    (114   U.   S.    252;    5 

Sup.    Ct.    Rep.    851,    affirming    4 

Fed.    Rep.    694;    2    McCrary    73), 

340,  341 
Biven  v.  Ohio  Oil  Co.    (11   Ohio  C. 

C.   Dec.   810;   21    Ohio  C.  C.   117, 

affirmed   65  Ohio   St.   507;   63   N. 

E.   Rep.   76),  88 
Black  V.  Chester    (175  Pa.  St.   101; 

34  Atl.  Rep.  354),  454 
Black  V.  Delaware,  etc.,  Co.    (24  N. 

J.  Eq.  455,  474),  528 
Black   V.   Delaware,  etc.,   R.   R.   Co. 

(22  N.  J.  Eq.  130),  527 
Black  Lick  Co.  v.  Saltsburg  Gas  Co. 

(139    Pa.    St.   448;    21    Atl.   Rep. 

432),  120,  592,  610,  611,  612 
Bladen  v.  Philadelphia    (60  Pa.  St. 

464),  469 
Blair  v.  Northwestern,  etc.,  Co.   (12 

Ohio  Cir.  Ct.  Rep.  78 ;  5  Ohio  Cir. 

Dec.  620),  152,  156,  220,  225,  247 
Blair  v.  Peck   (1  Penny   (Pa.)   247), 

122 
Blakeley  v.   Wershall    (174   Pa.   St. 

425;   34  Atl.  Rep.  564;  38  W.  N. 

C.  74),  289,  293 
Blaker  v.  Sands   (29  Kan.  551),  346 
Blenkiron    v.    Great    Central    Gas, 

etc.    (2  F.  and  F.  437;   2  Gas  J. 

292,   776;    3   L.  T.    (N.   S.)    317), 

685,  763 
Blewett  V.  Coleman   (40  Pa.  St.  45), 

296 
Blindert  v.   Kreiser    (81    Wis.    174; 

5  N.  W.  Rep.  324),  359 
Block  V.  Murray   (12  Mont.  545;  31 

Pac.  Rep.  550),  354,  359 
Blondell    v.    Consolidated    Gas    Co. 

(89  Md.   732;   43  Atl.   Rep.  817; 

46  L.  R.  A.  187),  620,  624 
Bloodworth    v.    Stevens     (51    Miss. 

475),  251 
Bloomington  v.  Wahl    (46  HI.  489), 

488  V 

Bloomfield  Coal,  etc.,  Co.  v.  Tidrick 

(99  la.  83;   68  N.  W.  Rep.  570), 

83 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Bloomfield,  etc.,  Co.  v.  Calkins    (62 

N.  Y.  386;   1  T.  &  C.  549),  552 
Bloomfield,  etc.,  R.  R.  Co.  v.  Rich- 
ardson   (63  Barb.  437),  383,  388, 

390,   552,   585 
Bloomfield,  etc..  Gas  Co.  v.  Calkins 

(1    T.   &   C.    (N.   Y.)     549),   391, 

392,  761 
Bluestone  Coal  Co.  v.  Bell    (38   W. 

Va.  297;   18  S.  E.  Rep.  493),  165 
BIy  V.  United  States    (4  Dill.  469), 

296 
Board  v.  Boatman's  Ins.  Co.   (5  Mo. 

App.    91),    238 
Board  v.  Hopkinsville   (95  Ky.  239; 

24   S.   W.   Rep.   872;    44  Am.   St. 

Rep.  222;   23   L.  R.  A.  402),  451 
Board  v.  Indianapolis   (132  Ind.  27; 

33  N.  E.  Rep.  972),  513 
Board  v.  Indianapolis,  etc.,  Co.   (134 

Ind.    209;    33    N.    E.    Rep.    972), 

389,  391,  549,  550,  554 
Board  v.  People   (91  111.  80),  519 
Board,  etc.,  Co.  v.  Barnett  (107  III. 

507),   553 
Boardman  v.  Wilson   (L.  R.  4  C.  B. 

57),  246 
Boatman's   Fire   Ins.   Co.   v.   Parker 

(23  Ohio  St.  85),  803 
Bockover  v.  Post   (25  N.  J.  L.  285), 

246 
Bogot  V.  Bogot   (32  Beav.  509),  288 
Bohan  v.  Port  Jervis  Gas  Co.    (122 

N.  Y.   18;   25  N.  E.  Rep.  246;   9 

L.  R.  A.  711),  664,  666,  672,  685 
Bonetti   v.   Treat    (91   Cal.   223;    27 

Pac.  Rep.  612),  231.  245 
Boone  v.  Stover   (66  Mo.  430),  82 
Boothman   v.  Mayor,   etc.,   of  Burn- 
ley  (20  Gas  J.  585),  722,  763 
Borland's  Appeal    (66  Pa.  St.  470), 

234 
Boston  V.  Binnoy    (11  Pick.  1),  277 
Boston    V.     Richardson      (13    Allen 

160),    548 
Boston  Franklin,  etc..  Co.  v.  Conditt 
(19  N.  J.  Eq.  394),  299 


Boucher    v.     Medverhill     (1     Mont. 

306),   246 
Bowen    v.    Bowen    (18    Conn.    535), 

199 
Bowen  v.   Stenson    (24   Beav.   631), 

317 
Bowling  Gi"een  v.  Carson   ( 10  Bush. 

64),  488 
Boyd  V.  McCombe    (4  Pa.  St.   146), 

251 
Boydell     v.     Dummond      (11     East. 

142),  314 
Boydston  v.  Meacham   (28  Mo.  App. 

494),   237 
Boyer  v.  Fulmer    (176  Pa.  St.  282; 

35  Atl.  Rep.  235),  162 
Boyer    v.    Grand    Rapids    Fire    Ins. 

Co.     (124    Mich.    455;    83    N.    VV. 

Rep.  124),  815,  797 
Boyer  v.  Little  Falls   (5  N.  Y.  App. 

Div.  1;  38  N.  Y.  Supp.  1114),  546 
Boys  V.  Robinson   (38  Atl.  Rep.   (N. 

J.)   50  Pac.  Rep.  347),  359 
Boys  V.  Robinson   (38  N.  J.  L.  813), 

188,   194,   199,   211,  218 
Boyston  v.  Miller,  298 
Brace  v.   New   York   Central   R.   R. 

Co.   (27  N.  Y.  269),  512 
Brady    v.    Detroit    Street,    etc.,    Co. 

(102   Mich.   277;    60   N.   W.   Rep. 

687;   26  L.  R.  A.  175),  662,  666, 

685,  776 
Bradford  Oil  Co.  v.  Blair    (113  Pa. 

St.    83;    4    Atl.    Rep.    218),     108, 

114,   123,  231,  233,  239 
Bradley  v.   Harkness    (26  Cal.   69), 

338 
Braintree     Water     Supply     Co.     v. 

Braintree    (146  Mass.  482;    16  N. 

E.   Rep.  420),  503 
Brand    v.    Hammersmith    Rail     Co. 

(L.  R.  4  H.  L.   171;   38  L.  J.   Q. 

B.  265;    21   L.   T.    (Va.)    238;    18 

W.  R.   12),  671 
Brass  v.  Rathbone    (153  N.  Y.  435; 

47  N.  E.  Rep.  905,  affirming  8  N. 

Y.  App.  Div.   78;   40  N.  Y.  Supp. 

466),  495,  573,  607,  610 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Breckenridge   r.    Deleware,    etc.,   R. 

R.  Co.   (N.  J.)   33  Atl.  Rep.  800), 

394 
Breckenridge    v.    Parrott     (15    Ind. 

App.  411;  44  N.  E.  Rep.  66),  112, 

231,  237,  245,  259,  267,  270 
Brenham  v.  Brenham  Water  Co.   ( 67 

Tex.  542;  4  S.  W.  Rep.  143),  498, 

508,  542 
Brick,   etc.,   Co.    v.   Pond    (38    Ohio 

St.   65),   162 
Bridgeport  v.  New  York,  etc.,  R.  R. 

Co.    (36  Conn.  266),  519 
Bridge   Proprietors    v.   Hoboken    ( 1 

Wall.   116),  493 
Briggs  V.  North  American,  etc.,  Ins. 

Co.   ( 53  N.  Y.  446 ) ,  804 
Briggs  V.  Davis    (81i/o  Pa.  St.  471), 

77 
Brinkley  V.  Hambleton  (67  Md.   169; 

8  Atl.  Rep.  904),  244 
Bristol   V.   Bristol,  etc.,  W.   W.    (19 

R.  I.  413;  34  Atl.  Rep.  359;  32  L. 

R.  A.  740),  563 
Bristol,  etc.,  Co.  v.  Bristol,  etc.,  Co. 

(99    Tenn.    371;    42    S.    W.    Rep. 

19),  362,  363 
Broadway,  etc.,  Co.  v.   Hankey    (31 

Md.   346),   479 
Broadbent  v.  Imperial  Gaslight  Co. 

(7  H.  L.  Cas.  600;  3  Jiir.   (N.  S.) 

221;   5  Gas  J.  342;  9  Gas  J.  751, 

affirming  7  DeG.  M.  &  G.  436 ;  26 

L.   J.    Ch.    276;    5   Jur.    (N.    S.) 

1319),  662,  665,  674,  676 
Bromas   v.    Young    (35    Hun    173), 

365,  366 
Bronson  v.  Lane    (91   Pa.  St.   153), 

106 
Bronx   Gas,   etc.,   Co.   v.   New   York 

(17    N.    Y.   Misc.    433;    41    N.   Y. 

Supp.  358),  451,  456,  470 
Brooklyn    City,    In-   re    (143   N.    Y. 

596;  38  N.  E.  Rep.  983;  26  L.  R. 

A.   270),  492,  496 
Brooklyn  v.   Fulton  Municipal   Gas 

Co.    (7  Abb.  N.  C.  19),  587 


Brooklyn  v.  Jourdan   (7  Abb.  N.  C. 

23),  522 
Brooks   V.    Hanna    (19    Ohio    C.    Ct. 

Rep.  216;  10  Ohio  Dec.  480),  287, 

288 

Brooks    V.    Kunkle     (24    Ind.    App. 

624;   57  N.  E.   Rep.  260),  263 
Brown  v.  Beecher    (120  Pa.  St.  590; 

15  Atl.  Rep.  608),  64,  75,  82,  224, 

350,  356 
Brown  v.  Bragg   (22  Ind.  122),  199 
Brown  v.  Corey  (43  Pa.  St.  495),  77 
Brown  v.   Corry    (175   Pa.   St.   528; 

34  Atl.  Rep.  854,  affirming  4  Pa. 

Dist.    Rep.    645;    17    Pa.    Co.    Ct. 

Rep.   490),   450 
Brown     v.     Fowler     (65     Ohio     St. 

507;  63  N.  E.  Rep.  76),  71,  85,  86, 

99,  152,  172,  173 
Brown  v.  Illius   (25  Conn.  583),  651, 

661,  665,  723 
Brown  v.  Jaquette  (94  Pa.  St.  113), 

342 
Brown  v.  Kidger    (3  H.  &.  N.  853; 

28  L.  J.  Exch.  66),  348 
Brown  v.  Magorty   (156  Mass.  209; 

30  N.  E.  Rep.   1021),  278 
Brown   v.    New    York   Gaslight   Co. 

(Anthon  N.  P.  351),  716,  749 
Brown  v.  Ohio  Oil  Co.    (21  Ohio  C. 

C.    117;    11   Ohio  C.   C.  Dec.   810, 

affirmed  65  Ohio  St.  507 ;  63  N.  E. 

Rep.   76),  84 
Brown  v.   Spilman    (155  N.  S.  665; 

15    Sup.    Ct.    Rep.    245,   reversing 

45  Fed.  Rep.  291),  32,  51,  53,  97, 

698 
Brown  v.  Torrence  (88  Pa.  St.  1S6), 

654 
Brown   v.    Vandergrift    (80    Pa.    St. 

142),  34,  146,  178,  182,  195,  204 
Brum's  ApJ^al   (12  Atl.  Rep.    (Pa.) 

855),    607,    608 
Brunot's   Estate.    In  re    (29   Pittsb. 
L.  J.   (N.  S.)   105),  69,  229 


TABLE    OF    CASES. 


(References  are   to  pages.) 


Brunswick    Gaslight    Co.   v.    U.    S., 

etc.,    Co.),    85    Me.    532;    27    Atl. 

Rep.  525;    35  Am.   St.  Rep.  385; 

43  Am.  &  Eng.   Corp.  Cas.  459), 

459,  527,   546,  577 
Brush  Electric  Light  Co.  v.  Cincin- 
nati   (28  Wkly.  Law  Bull.  29;  27 

Wkly.    Law    Bull.    412;    11    Ohio 

Dee.  581),  455 
Brush    Electric    Light,    etc.,    Co.    v. 

Montgomery     (114    Ala.    433;    21 

So.   Rep.  960),  462,  463 
Brush  Electric  Light  Co.   v.   Phila- 
delphia   (8   Pa.   Dist.   Rep.   231), 

838 
Brushwood  Developing  Co.  v.  Hickey 
(16  Atl.   Rep.    (Pa.)    70;   2  Mon. 

(Pa.)   65),  253,  262 
Bryan  v.   Bancks    (4   Barn.   &  Aid. 

401),  182, 
Bryant    v.    Poughkeepsie,    etc.,    Ins. 

Co.    (17   N.   Y.   200,   affirming  21 

Barb.  154),  816,  817 
Brymer   v.   Butler   Water   Co.    (179 

Pa.  St.  331;  27  Pittsb.  L.  J.    (N. 

S.)    285;    39    W.    N.    C.    439;    36 

Atl.  Rep.  249;   36  L.  R.  A.  260), 

433 
Bryn  Mawr  Water  Co.  v.  Lower  Ma- 
rion   Tp.     (15    Pa.    Co.    Ct.    Rep. 

527;  4  Pa.  Dist.  Rep.  157),  542 
Buchanan  v.  Cole  (57  Mo.  App.  11), 

75,  79 
Buchanan  v.  Exchange  Fire  Ins.  Co. 

(61  N.  Y.  26),  798 
Buckeye  Pipe  Line  Co.   v.   Fee    (15 

Ohio  C.  C.  673),  388 
Buckley  v.  Kenyon    (10  East.  139), 

48 
Budd  V.  New  York   (143  U.  S.  517; 

12  S.  Ct.  Rep.  468),  432 
Buesching  v.  St.  Louis,  etc.,  Co.   (73 

Mo.  219;  11  Rep.  675,  reversing  6 

Mo.  App.  85).  789 
Buffalo  V.   Buffalo  Gas  Co.    (80   N. 

Y.  Supp.  1093),  618,  625,  626 
Buffalo  V.  Webster  (10  Wend.  100), 

488 


Buffalo  Gas  Co.   In  re  (73  Fed.  Rep. 

191),  32 
Buhl  V.  Thompson   (3  Penny.   (Pa.) 

267),  161 
Bullmaster   v.    St.   Joseph    (70   Mo. 

App.  60),  722 
Burba nk    v.    Pillsbury     (48    N.    H. 

475),  102 
Burdon  v.  Barkai    (3   Giff.  412;    31 

L.    J.    Ch.    521;    8    Jur.     (N.    S.) 

130;   5  L.  T.  573),  350 
Burgan  v.   Lyell    (2   Mich.   102;    55 

Am.  Dec.  53),  338,  349 
Burkhardt  v.  Striger  (67  S.  W.  Rep. 

(Ky.)   270),  418,  419 
Burlington  Water  Co.  v.  Woodward 

(49  la.  58).  450 
Burmester  v.  Norris    (21   L.  J.    (N. 

S.)   Exch.  43;  6  Exch.  796;   17  L. 

T.  232),  348 
Burnes  v.  McCubbin   (3  Kan.  221), 

247 
Burnell    v.    Brown     ( 1    J.    and    W. 

168).  317 
Burnett  v.  Lynch    (5  B.  &  C.  589; 

8  D.  &  R.  368;  4  L.  J.   (0.  S.)   K. 

B.  274),  244,  245 
Burnham    v.    Roberts     (103     Mass. 

379),  277 
Burrows  v.  March  Gas  &  Coke  Co. 
(L.  R.  7  Exch.  96;  41  L.  J.  Exch. 

S.)   24),  692 
Burrows  v.  March  Gas  &  Coke  Co. 

(L.  R.  7  Exch.  96;  41  L.  J.  Exch. 

46;  26  L.  T.  318;   20  W.  R.  493), 

584,  709,  731,  733 
Burton   v.    Barclay    (7   Bing.    745), 

238 
Burton  v.   Forest  Oil   Co.    (54   Atl. 

Rep.    (Pa.),  266),  136,  140,  246 
Busby  V.  Russell    (18  Ohio  CIr.  Ct. 

Rep.  12;   10  Ohio  C.  D.  23),  254, 

273 
Bush    V.    Seabury     (8    Johns.    418), 

488 
Bush   V.    Sullivan    (3   Greene    (la.) 

344;  54  Am.  Dec.  506),  83 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Buskirk  V.  King   (72  Fed.  Rep.  22), 

120 
Butcher  v.  Providence  Gas  Co.    ( 12 

R.  I.   149;   34  Am.  Rep.  626;    18 

Alb.   L.   Jr.   372),   687,   718,    /29, 

735,  758,  761,  762,  764 
Butchers'   Union,   etc.,   Co.   v.   Cres- 
cent   City,    etc.,    Co.     (Ill    U.    S. 

746;    4   Sup.   Ct.   Rep.   652),    420, 

664,  675 
Butler    Savings    Bank    v.    Osborne 

(159    Pa.    St.    10;    28    Atl.    Rep. 

163),  336,  342 
Butt  V.  EUett  (19  Wall.  544),  229 
Butt  V.    Imperial   Gaslight  &   Coke 

Co.   (L.  R.  2  Ch.  158;  14  L.  T.  R. 

349;  15  Gas  J.  139),  665,  674 


C 


Caballero    v.    Home    Insurance    Co. 

(15  La.  Ann.  217),  804 
Cadman  v.  Jenkins    (14  Mass.  93), 

277 
Cahoon  v.  Bayaud    (123  N.  Y.  298; 

25  N.  E.  Rep.  376),  79,  90 
Caldwell    v.    Alton     (33    111.    417), 

488 
Caldwell   v.    Copeland    (37    Pa.    St. 

427;    78  Am.   Dec.  436),   77,  321, 

324,   325 
Caldwell  v.  Fulton  (31  Pa.  St.  475). 

73,  77,  80,  105 
Caley   v.    Portland    (12    Colo.    App. 

397;  56  Pac.  Rep.  350),  254 
Caley    v.    Portland     (71    Pac.    Rep. 

(Colo.)   892),  197 
Calhoon  v.  Neely    (201   Pa.   St.  97; 

50  Atl.  Rep.  957),    160,  166 
California  Oil  Gas  Co.  v.  Miller   (96 

Fed.  Rep.  12),  140,  327 
Calkins  v.  Bloomfield,  etc.,  Gas  Co. 

(1  T.  &  C.   (N.  Y.)   541),  391 
Camden    v.    Murray     (16    Ch.    Div. 

161;    50  L.  J.   Ch.  282;   43  L.  T. 

661;  29  W.  R.  190).  279 
Campbell  v.  Lloyd's   Bank    ([1891] 

1   Ch.   136,  note),  372,  377 


Campbell   v.   Roddy    (44   N.   J.   Eq. 

244;  14  Atl.  Rep.  279),  630,  631 
Campbell  v.  Seaman  ( 63  N.  Y.  568 ; 

20  Am.  Rep.  567),  663 
Campbell  v.  Wardlow   (L.  R.  8  App. 

Cas.  641),  287 
Canfield   v.    Ford    (28    Barb.    336), 

299 
Capehart  v.  Foster    (61   Minn.   132; 

63   N.   W.   Rep.   257;    52   Am.    St. 

Rep.  582).  636 
Capitol  City  Gaslight  Co.  v.  Charter 

Oak  Ins.   Co.,  834 
Capital,  etc.,  Co.  v.  Gaines    (20  Ky. 

L.  Rep.  1464;  49  S.  W.  Rep.  402, 

462),  605,  618,  625 
Capital  City,  etc.,  Co.  v.  Tallahassee 

(42   Fla.   462;    28   So.   Rep.   810), 

488 
Capital  Gas  Co.  v.  Young   (109  Cal. 

140;   41  Pac.  Rep.  869;   29  L.  R. 

A.  463),  475 
Capital    City    Gaslight    Co.    v.    Des 

Moines    (72   Fed.  Rep.   829),   421, 

422,  426,  427,  428,  431,  432 
Capital    City    Gaslight    Co.    v.    Des 

Moines    (93    la.    547;    61    N.    W. 

Rep.  1066;  48  Am.  and  Eng.  Corp. 

Cas.  138),  462 
Capital    City    Water    Co.    v.    State 

(105    Ala.   406;    18    So.    Rep.   62; 

29  L.  R.  A.  743).  523,  539,  540 
Capner  v.  Mining  Co.    (2  Green    (N. 

J.)    Ch.  467).  370 
Capron    v.    Strout     (11    Nev.    304), 

357 
Carey    v.    Bight     (58    Pa.    St.    70), 

641 
Carhart  v.  Auburn  Gaslight  Co.    ( 22 

Barb.  297),  6.54,  661,  663,  673 
Carleton  v.  Lombard,  etc.,  Co.    (14!) 

N.  Y.  137;  43  N.  E.  Rep.  422;  149 

N.    Y.    35;    44   N.    E.    Rep.    183), 

786,  787 
Carley  v^Lewis   ( 24  Ind.  23 ) .  233 
Carlin  v.  Western,  etc.,  Co.   (57  Md. 

515;   40  Am.  Rep.  440),  796,  799, 

800,  821 


xl 


TABLE    OF    CASES. 


(References  arc  to  jiages.) 


Carlisle  Gas  &  Water  Co.  v.  Carlisle 

Water   Co.    (182   Pa.    St.    17;    37 

Atl.  Rep.  821),  483,  514,  515 
Carlon  v.  Sultman  (28  Neb.  672;  44 

N.  W.  Rep.  873),  390 
Carlyle  v.  Carlyle,  etc.,  Co.    (52  111. 

App.  577),  437 
Carmichael   v.   Texarkana    (94   Fed. 

Rep.  561),  664 
Carmody    v.     Boston     Gaslight    Co. 

(162    Mass.    539;    39    N.    E.    Rep. 

184),  702,  768 
Carne  v.  Mitchell   (15  L.  J.   (N.  S.) 

Ch.  287),  318 
Carnegie  Natural  Gas  Co.  v.  Phila- 
delphia Co.    (158  Pa.  St.  317;  27 

Atl.  Rep.  951),  132,   192 
Garner  v.  Peters    (9  Pa.   Super.  Ct. 

Rep.  29;  43  W.  N.  C.  261),  320 
Carother's     Appeal      (118     Pa.     St. 

468;    12  Atl.   Rep.  314;    11   Cent. 

Rep.  48),  491,  501,  530 
Carother   v.    Philadelphia   Co.    (118 

Pa.    St.   468;    12   Atl.    Rep.    314), 

383,    388 
Carr  v.   Benson    (L.  R.  3   Ch.  App. 

524;  78  L.  T.  696;  16  W.  R.  744), 

79 
Carrhart   v.    Montana,   etc.,    Co.    ( 1 

Mont.  245),  78 
Carrigan  \.  Lycoming  Fire  Ins.  Co. 

(53  Vt.  418;    38  Am.   Rep.   687), 

825 
Carroll  v.   Provincial,  etc.,   Co.    (26 

Can.  S.  C.  591),  83 
Carter  v.  Coumty  Court  (45  W.  Va. 

806;  32  S.  E.  Rep.  216;  43  L.  R. 

A.   725),  840,  841 
,  Carter  v.  Hammett   (18  Barb.  608). 

238 
Carter   v.    Producers',    etc.,    Oil    Co. 

(164    Pa.    St.    463;    30    Atl.    Rep. 

391),  352 
Carter  v.   Tyler   County   Court    (45 

W.  Va.   806;    32   S.   E.   Rep.  216; 

43  L.  R.  A.  725),  52 


Carterville    Improvement,    etc.,    Co. 

V.  Carterville    (89  Ga.  683;    16  S. 

E.  Rep.  25),  468 
Cary  Hardware  Co.  v.  McCarty  (10 

Colo.     App.     200;     50    Pae.     Rep. 

744),  62 
Case  V.  Haight   (3  Wend.  632),  328 
Cassell    V.    Crothers     (193    Pa.    St. 

359;   44  Atl.  Rep.  446),  152,  153, 

221 
Catlin  Coal    Co.   v.   Lloyd    (176    111. 

275;   52  N.  E.  Rep.   144;    180  HI. 

398;  54  N.  E.  Rep.  214),  321,  326 
Central  Land  Co.  v.  Laidley   (32  W. 

Va.  134;  9  S.  E.  Rep.  61),  281 
Central  Transportation  Co.  v.  Pull- 
man  Palace   Car   Co.    (139   U.   S. 

24;    11  Sup.  Ct.  Rep.  478),  528 
Central  Trust  Co.  v.  Berwind  White 

Coal  Co.   (95  Fed.  Rep.  391),  278, 

368 
Central    Trust,    etc.,    Co.    v.    Cincin- 
nati,   etc.,    Co.     (26    Wkly.    Law 

Bull.     149;     11     Ohio     Dee.     Rep. 

348),  633,   635 
Central  Trust  Co.  v.   Sheffield,  etc., 

Co.    (42  Fed.  Rep.  106),  355 
Centre    Hall    Water    Co.    v.    Centre 

Hall     (186    Pa.    St.    74;    40    Atl. 

Rep.   153),  464,  480,  483 
Cerf  V.  Home  Ins.  Co.   (44  Cal.  320; 

13  Am.  Rep.   165),  811,  816 
Chadwick  v.   Corporation  of   Wigan 

(28  Gas  J.  562),  718,  722,  762 
Chamberlain  v.  Dow    (16  W.  N.  C. 

(Pa.)   5.32),  63,  72,  238,  279 
Chamberlain   v.    Parker    (40   N.    Y. 

569;    45    N.    Y.    569),    115,    122, 

264 
Chamberlain  v.  Summit  Gas  Co.   (13 

Penny.    (Pa.)    261),  615 
Chambers    v.    Smith     (183    Pa.    St. 

122;    38  Atl.  Rep.  522),  107,   142, 

268 
Chandler  v.  Pittsburgh,  etc.,  Co.  (20 

Ind.    App.    165;     50    N.    E.    Rep. 

400),   229 


TABLE    OF    CASES. 


xli 


(References  are  to  pages.) 


Chapman    v.    Grays'    Gas    Co.     (13 

Gas  J.  448),  537 
Chapman  v.  South,  etc.,  Co   (61  Gas 

J.  359,  415,  460),  651 
Charity    Hospital    v.    New    Orleans 

Gaslight  Co.   (40  La.  Ann.  382;  4 

So.  Rep.  433),  468 
Charles  v.  Eshleman    (5  Colo.   107), 

340,  342,  344,  348,  349 
Charles    v.    Froebel     (47    Mo.    App. 

45),    171,   245 
Charlotte    v.    Shepard     (120    N.    C. 

411;  27  S.  E.  Rep.  109),  563 
Charters  of  Gas  Companies    (5  Pa. 

Dist.  Rep.  39*  18  Pa.  Co.  Ct.  Rep. 

136),  482 
Charters   of   Gas   Companies,   In   re 

(18   Pa.  Co.  Ct.  Rep.   136;   5  Pa. 

Dist.  Rep.  396),  530 
Chartiers  Block  Coal  Co.  v.  Mellon 

(152    Pa.    St.    286;    25   Atl.    Rep. 

597;  18  L.  R.  A.  702),  94,  397 
Chartiers  Valley  Gas  Co.  v.  Lynch 

(118    Pa.    St.    362;    12    Atl.    Rep. 

435),  754 
Chartiers  Valley  Gas  Co.  v.  Waters 

(123    Pa.    St.    220;    16    Atl.    Rep. 

423;  25  Am.  and  Eng.  Corp.  Cas. 

400),  754 
Chasemore  v.  Richards   ( 7  H.  L.  Cas. 

349;    2    H.    &    N.    168;    29    L.    J. 

Exch.  81;   5  Jur.    (N.  S.)    873;   7 

W.  R.  685 ) ,  48 
Cheesman  v.   Shreve    (40  Fed.   Rep. 

787),  49 
Cheney  v.  Cook   (7  Wis.  357),  95 
Cherokee,    etc.,    Co.    v.    Wilson    (47 

Kan.  460;  28  Pac.  Rep.  178),  53, 

698 
Chevington  &  Burn  Co.  v.  Lewis  ( 10 

W.  N.  C.    (Pa.)    196),  839 
Chicago  V.  Rumpf?    (45   111.   90;   92 

Am.   Dec.   196),  488 
Chicago  Economic  Fuel  Co.  v.  Myers 

(168   111.   139;   48  N.  E.  Rep.  66, 

affirming  64  111.  App.  270;  1  Chic. 

L.  J.  Wkly.  276),  693 


Chicago  Gaslight  &  Coke  Co.  v.  Peo- 
ple's,  etc.,   Co.    (121    111.   530;    13 

N.  E.  Rep.   169;    2  Am.   St.  Rep. 

124,  reversing  20  111.  App.  473), 

460,  503,  527,  536 
Chicago,  etc.,  Co.  v.  Lake    (130  111. 

42;   22  X.  E.  Rep.  616,  affirming 

27  111.  App.  346),  432,  513,  514, 

515,  520,  524,  538 
Chicago,   ete.^   Co.  v.   United   States 

Co.   (57  Pa.  St.  83),  72,  81 
Chicago,  etc.,  Ry.  v.  Minnesota  (134 

U.   S.  418),  430,  431 
Chicago,  etc.,  Ry.  v.  Wellman    (143 

U.  S.   339),  431 
Chicago  R.  R.  Co.  v.  People   (73  III. 

541),  520 
Chicago   Smokeless  Fuel  Gas  Co.  v. 

Lyman   (62  111.  App.  538),  361 
Child  V.  Starr   (4  Hill  369),  93 
Childers  v.  Neeley    (47  W.  Va.  70; 

34   S.   E.   Rep.   828;    49   L.    R.   A. 

468),  289,  293,  336,  342,  346,  347, 

349,  350 
Childs  V.  Clark   (3  Barb.  Ch.  52;  49 

Am.  Dec.  164),  233,  365 
Childs  V.  Gillespie  (147  Pa.  St.  173; 

23  S.  E.  Rep.  312),  86 
Childs  v.Hurd  (32  W.  Va.  66;   9  S. 

E.  Rep.  362),  366,  370,  638,  639 
Childs  V.  Kansas  City,  etc.,  Co.  (117 

Mo.  414;  23  S.  W.  Rep.  373),  296, 

297 
Chisholm    v.    Atlanta    Gaslight    Co. 

(57  Ga.  28),  682,  687,  710,  762 
Chisholm  v.  Halifax    (29   Nov.  Sco. 

402),  532,  789 
Chister    Emery    Co.   v.    Lucas    (112 

Mass.  424),  76,  77 
Chetham    v.    Williamson     (4    East. 

469),   105 
Chouteau  v.   St.  Louis  Gaslight  Co. 

(47  Mo.  App.  326).  624 
Christy's  Appeal    (110   Pa.  St.  538; 

5    Atl.^ep.    205;    9    Morr.    Min. 

Rep.  42),  300 
Chung   Kee   v.    Davidson    (102    Cal. 

188;  36  Pac.  Rep.  519),  342,  345 


xlii 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Churchill  v.  Lammers   (60  Mo.  zipp. 

244),  308 
Chynowitch  v.  Granby,  etc.,  Co.   (74 

Mo.  173),  83 
Cincinnati  v.  Cincinnati  Gaslight  & 

Coke  Co.   (53  Ohio  St.  278;  41  N. 

E.  Rep.  239),  598 
Cincinnati,     etc.,     Co.     v.     Bowling 

Green   (57  Ohio  St.  336;  49  N.  E. 

Rep.    121),    428,    434,    577,    578, 

579,   588,  597 
Cincinnati     Gaslight,     etc.,     Co.     v. 

Avondale   (43  Ohio  St.  257;   1  N. 

E.  Rep.   527,  reversing  8  Ohio  N. 

P.  88;   11  Wkly.  L.  Bull.  216;   13 

Wkly.  L.  Bull.  467 ;   14  Wkly.  L. 

Bull.  15),  425,  434,  443,  444,  463, 

499 
Cincinnati,    etc..    Co.    v.    State    (18 

Ohio  St.  237),  444,  622,  836 
Citizens'    Gas,    etc.,    Co.    v.    Elwood 

(114  Ind.  332;  16  S.  E.  Rep.  624; 

20  Am.  and  Eng.  Corp.  Cas.  263), 

488 
Citizens'  Gaslight  &  Heating  Co.  v. 

O'Brien     (15    111.    App.    400,    af- 
firmed 118  111.  174),  736,  760 
Citizens'  Gaslight  &  Heating  Co.  v. 

O'Brien    (118    111.    174;    8    N.    E. 

Rep.   310,  affirming   115  111.  App. 

400),  736,  750,  751,  761,  792 
Citizens'  Gaslight  &  Heating  Co.  v. 

O'Brien   (19  111.  App.  231),  736 
Citizens'   Gaslight  Co.  v.  Wakefield 

(161    Mass.   432;    37   N.   E.   Rep. 

444),  566,  558 
Citizens'  Ins.  Co.  v.  McLaughlin  (53 

Pa.  St.  485),  809,  818 
Citizens'  Natural  Gas  Co.  v.  Shenan- 

go,  etc.,  Co.    (138  Pa.   St.  22;    20 

Atl.  Rep.  947),  120 
Citizens'   Water   Co.   v.    Bridgeport, 

etc.,  Co.  (55  Conn.  1;  10  Atl.  Rep. 

170),  480 
Citizens'    Water    Co.'s    Charter     (6 

Pa.  Dist.  Rep.  80),  483 
City  of  Erie,  Appeal  of   (91  Pa.  St. 

398),  450 


City  of  New  York  v.  Hamilton  Fire 

Ins.  Co.   (10  Bosw.  537),  813 
City  of  New  York  v.  Brooklyn  Fire 

Ins.  Co.   (41  Barb.  231),  823 
City  of  Philadelphia  v.  Collector   (5 

Wall.   720),  837 
City  of  Scranton  v.  Gilbert   (16  W. 

N.  C.    (Pa.)    28),  839 
City   Fire    Ins.   Co.    v.    Corlies    (21 

Wend.  367),  803 
City   Water   Co.   v.   State    (88   Tex. 

600;  32  S.  W.  Rep.  1033;  33  S.  VV. 

Rep.  259),  541 
City  Water  Co.  v.  State    (33  S.  W. 

Rep.    (Tex.)    259),  527 
City  Water  Supply  Co.  v.  Ottumwa 

(120  Fed.  Rep.  309),  450 
Clark   V.   Brown    (83   Cal.    181;    23 

Pac.  Rep.  289),  346 
Clark  V.  Jones   (1  Denio  516),  199 
Clark  V.  Midland,  etc.,  Co.   (21   Mo. 

App.  58),   162 
Clark  V.  Ritter    (59  Cal.  669),  342, 

347 
Clark    V.    Rumsey    (59    N.    Y.    App. 

Div.  435;  69  N.  Y.  Supp.  102;  52 

N.  Y.  Supp.  417),  349 
Clarke    v.    Curtis     (1    Gratt.    289), 

366 
Clarksburg    Electric    Light    Co.    v. 

Clarksburg  (47  W.  Va.  739;  35  S. 

E.    Rep.   994;    50   L.    R.    A.    142), 

522,  534 
Clason   V.    Corley    (5    Sandf.    447), 

367 
Clavering    v.    Clavering     (2    P.    W. 

(N.   S.)    388),  289 
Clavering  v.  Westley   (3  P.  W.    (N. 

S.)    402).  277 
Clegg  V.  Earby  Gas  Co.    ([1896]    1 

Q.  B.   592;    65   L.   J.   Q.   B.   339), 

587 
Clement  v.  Youngman    (210  Pa.  St. 

341),  63.  80 
Clements    v.    Philadelphia    Co.    (184 

Pa.  St.  28;  38  Atl.  Rep.  1090;  28 

Pittsb.  L.  J.    (N.  S.)    344;  41  W. 

N.  C.  321;  39  L.  R.  A.  532),  649 


TABLE    OF    CASES. 


xliii 


(References  are  to  pages.) 


Clements    v.    Philadelphia    Co.     (3 

Super.  Ct.  14;   39  \V.  N.  C.  299, 

reversed  184  Pa.  St.  28;  41  W.  N. 

C.  321;   28  Pittsb.  L.  J.    (X.  S.) 

344 ;  39  L.  R.  A.  532 ;  38  Atl.  Rep. 

1090),  392,  394,  408 
Cleminger   v.   Baden   Gas   Co.    (159 

Pa.   St.  16;    33  W.  N.  C.  480;   28 

Atl.  Rep.  293),  68,  150,  167,  192, 

193,  210,  214 
Cleveland,  etc.,  R.  R.  Co.  v.  Closser 

(126    Ind.    348;    26    N.    E.    Rep. 

159;   9  L.  R.  A.  754;  22  Am.  St. 

Rep.  593),  626 
Cleveland,  etc.,  Co.  v.  Backus    (133 

Ind.  513;   33  N.  E.  Rep.  421;    18 

L.  R.  A.  729,   affirmed   154   U.  S. 

439;   14  Sup.  Ct.  Rep.  1122),  837 
Cleveland,  etc.,  Ry.  Co.  v.  Conners- 

ville  (147  Ind.  277;  46  X.  E.  Rep. 

579),  588 
Cleveland,   etc.,   Ry.   Co.   v.    Ballen- 

tine    (84  Fed.  Rep.  935;  56  U.  S. 

App.  266;   28  C.  C.  A.  572),  405, 

408 
Cleveland  v.   Citizens'  Gaslight   Co. 

(20  N.  J.  Eq.  201),  664,  667,  672, 

674,  679 
Cleveland    Gaslight    &    Coke    Co.    v. 

Cleveland    (71   Fed.  Rep.  610;   35 

Ohio  L.  Bull.  155),  421,  422.  428, 

442 
Cleveling  v.  West  End  Iron  Co.   (51 

N.  J.  L.   34;    16   Atl.  Rep.   184), 

224,   245 
Clift  V.  Clift  (3  Pickle   (Tenn.)    17; 

9   S.  W.  Rep.   360).  288 
Clippens   Oil   Co.  v.  Edinburgh,  etc. 

(25  Rettie  370),  553 
Cline  V.  Kirkbinder    (12  Ohio  C.  C. 

Dec.  517;  22  Ohio  Cir.  Rep.  527), 

668 
Clowes   V.   Staffordshire  \Y.   W.   Co. 

(L.   R.    8   CK.    125;    42   L.   J.   Ch. 
.    107;   27  L.  T.  521;   2  W.  R.  32), 

674 
Clowser    v.    Joplin    Mining    Co.     (4 

Dill  469),  296 


Coal  Co.  V.  Pearce   (153  Pa.  St.  74; 

25  Atl.  Rep.  1026),  109 
Coaldale,  etc.,  Co.  v.  Qark    (43  W. 

Va.  84;  27  S.  E.  Rep.  294),  272 
Coates    v.    Cheever     (1    Cow.    460), 

287,  289,  294 
Coates  V.  Mayor   ( 7  Cow.  585 ) ,  420, 

675 
Coatsville    Gas    Co.    v.    County    of 

Chester     (97    Pa.    St.    476),    832, 

838 
Cochran   v.   Pew    (159   Pa.  St.   184; 

28  Atl.  Rep.  219),  131,  183,   184, 

187,  266 
Cochran    v.    Philadelphia,    etc.,    Co. 

(184   Pa.    St.    565;    39    Atl.   Rep. 

296),  704 
Cochran  v.   Shenango,  etc.,   Co.    (23 

Pittsb.  Leg.  J.   (X.  S.)  82),  169 
Cochrane     v.     Justice     Mining     Co. 

(26  Pac.  Rep.    (Colo.)    780),  314, 

317 
Coe  V.  Hobby  (72  X^  Y.  141),  172 
Coffin   V.    Davenport    (26    la.   515), 

468 
Coffeyville,    etc.,     Co.    v.     Citizens', 

etc.,   Co.    (55   Kan.   173;   40   Pac. 

Rep.  326),  513,  534 
Coffinbery  v.  Sun  Oil  Co.    (67  X.  E. 

Rep.    (Ohio)    1069),  146,  147,166, 

176,  191,  198,  203,  207,  218 
Colby  V.  Gadsden  (34  Beav.  416;  11 

Jur.  (X.  S.)  760;  12  L.  T.  197), 

319 
Cole  V.  Pennoyer    (14  111.  158),  280 
Cole   V.    Taylor    (8    Pa.    Super.    Ct. 

Rep.  19),  161,  167.  228 
Coleman's  Appeal    (1  Pearson  470), 

296 
Coleman's  Appeal    (62  Pa.  St.  252), 

301,  303 
Coleman    v.    Blewett     (43    Pa.    St. 

176),  %EI0 
Colgan     V.      Forest     Oil     Co.      (30 

Pittsb.   L.   J.    (X.    S.)    68),    107, 

203 


xliv 


TABLE    OF    CASES. 


Colgan  V.  Forest  Oil   Co.    (194   Pa. 

St.    234;    45    Atl.    Rep.    119;    30 

Pittsb.  L.  J.    (N.  S.)   68;  75  Am. 

St.  Rep.  695,  rev.  30  Pittsb.  Leg. 

(N.  S.)    213),  107,  115,   128,  129, 

274 
Collier  v.  Cunningham   (2  Ind.  App. 

254;  28  N.  E.  Rep.  341),  247 
Collins  V.   Cincinnati,   etc.,   Co.    (13 

Ky.    Rep.    670;     18    S.    W.    Rep. 

11),   791 
Collins    V.    Hasbroiick     (56    N.    Y. 

157;    15  Am.  Rep.  407),  246 
Collins   V.    Mechling    ( 1    Pa.   Super. 

Ct.   Rep.   594;    38   W.   N.   C.   235; 

26    Pittsb.    L.    J.     (N.    S.)    459), 

153,  155 
Colorado,  etc.,  Co.  v.  Turck  (70  Fed. 

Rep.  294),  49,  197 
Colson     V.      Poi'tland      (Fed.     Cas. 

3275),  451 
Columbia,  etc.,  Co.  v.  American  Fire 

Ins.  Co.    (59  Mo.  App.  204),  812, 

821 
Columbia   Conduit   Co.   v.   Common- 
wealth   (90  Pa.  St.  307),  53,  548, 

553 
Columbian    Oil    Co.    v.    Blake     (13 

Ind.    App.    680;    42    N.    E.    Rep. 

234),  32,   132,  267,  269,  282 
Columbus,  etc.,  Co.  v.  Columbus   (50 

Ohio  St.  65;    33  N.  E.  Rep.   292; 

19  L.  R.  A.  510),  542 
Columbus    Water    Co.    v.    Columbus 
(48  Kan.  99;  28  Pac.  Rep.  1097), 

452 
Columbus   Water    Co.    v.    Columbus 
(48  Kan.  378;  2J  Pac.  Rep.  762; 

15  L.  R.  A.  354),  502 
Columbus  Gaslight  Co.  v.  Freeland 

(12  Ohio  St.  392),  651,  653,667 
Columbus,   etc.,    Co.   v.   Tucker    (48 

Ohio  St.  41;  26  N.  E.  Rep.  630), 

654 
Colvin    V.    Weimer     (64    Minn.    37; 

65  N.  W.  Rep.  1079),  3.59.  360 
Comc.gj's    V.    Russell     (175    Pa.    St. 
166;   34  Atl.  Rep.  657),  232,  236 


(References  are  to  pages.) 

Commercial    Bank    v.    London    Gas 
Co.   (20  Up.  Can.  Q.  B.  233),  576, 


585 
Commercial,  etc.,  Co..  v.  Taeoma   (17 

Wash.    661;    50    Pac.    Rep.    592), 

522,  527,  541 
Commercial  Gas  Co.  v.  Scott  (L.  R. 

10  Q.  B.  400;  25  Gas  J.  889),  577, 

587 
Commercial    Ins.    Co.    v.    Mehlman 

(48   111.  313),  801 
Commercial    Ins.    Co.    v.    Robinson 

(64    111.   265),  803 
Commercial  Union  Fire   Ins.   Co.  v. 

Lister   (23  Gas  J.  364),  826 
Commonwealth    v.    Lowell    Gaslight 

Co.   (12  Allen  77),  "390,  575,  618, 

632 
Commonwealth     v.     McKibbon      (90 

Ky.  384;   14  S.  W.  Rep.  372),  835 
Commonwealth   v.   Nashua,   etc.,   R. 

R.  Co.   (2  Gray  54),  514 
Commonwealth  v.   Old   Colony,  etc., 

R.  R.  Co.  (14  Gray  93),  514 
Commonwealth  v.  Philadelphia   (132 

Pa.   St.   288;    19   Atl.   Rep.    136), 

607,   608 
Commonwealth  v.  Russell    (172  Pa. 

St.  506),  658 
Commonwealth  v.   Sauter    (6   Kulp. 

407),   397 
Commonwealth    v.    Shaw     (4    Allen 

308;    81    Am.    Dec.    706;    Beale's 

Cas.  506),  843 
Commonwealth    v.    Steierling     (156 

Pa.  St.  400;  27  Atl.  Rep.  297),  42 
Commonwealth    v.    Towanda    Water 

Works    (15  Atl.  Rep.    (Pa.)   440), 

539.  540 
Commonwealth   v.   Wentworth    (118 

Mass.  441),  419 
Commonwealth  v.  Wilkes-Barre  Gas 

Co.     (2    Kulp.     (Pa.)     499),    576, 

581 
Conant  v.  Smith    ( 1  Aiken  67 ) ,  298 
Conemaugh     Gas     Co.     v.     Jackson 

Farm   Gas  Co.    (186  Pa.  St.  443; 

40  Atl.  Rep.  1000),  614 


TABLE    OF    CASES. 


xlv 


(References  are  to  pages.) 


Confers   v.   New   York,    etc.,    R.    R. 

Co.   (146  Pa.  St.  31;  23  Atl.  Rep. 

202),  770 
Conger   v.   National,    etc.,   Co.    ( 16.5 

Pa.  St.  561;   31  Atl.  Rep.   1038), 

184 
Conner  v.   New  Albany    ( 1    Blackf . 

43),   513 
Conrad  v.  Morehead   (89  X.  C.  31), 

70,  190 
Conroy    v.    Chicago,    etc.,    Co.     (96 

Wis.  243;  70  N.  W.  Rep.  486;  38 

L.  R.  A.  419),  406 
Conshohocken    Gaslight    Co.,    In    re 

(5  Pa.  Co.  Ct.  Rep.  585),  525 
Consolidated     Coal     Co.     v.     Baker 

(135  111.  545;  26  X.  E.  Rep.  651), 

841 
Consolidated  Gas  Co.  v.  Crocker  (82 

Md.  113;   34  Atl.  Rep.  423;  31  L. 

R.    A.    785),    685,   697,    706,    707, 

710.  712,  723,  746,  748 
Consolidated  Gas  Co.  v.  Mitchell '( 1 

Daiiph.  Co.  Rep.  71),  482 
Consolidated  Coal  Co.  v.  Peers    (59 

111.  App.  604),  257 
Consolidated  Coal  Co.  v.  Peers  (150 

111.   344;    37    N.   E.   Rep.   937,   af- 
firming 39  111.  App.  453),  75,  76, 

79,  234,  245,  272 
Consolidated  Coal  Co.  v.  Savitz   (57 

111.  App.  659),  94 
Consolidated    Coal    Co.    v.    Seninger 

(79  111.  App.  456,  affirmed  179  111. 

370;    53    X.    E.    Rep.    733),    693, 

753 
Consumers'  Gas  Co.  v.  Toronto    (26 

Ont.  Rep.  722),  833 
Consumers'  Gas  Oo.  v.  Toronto    (27 

Can.   S.  C.  453,   affirmed  23   Ont. 

App.  Rep.  551 ) ,  832 
Consumers'   Gas   Trust   Co.   v.    Cor- 

baley  (14  Ind.  App.  549;  43  X.  E. 

Rep.  237),  707,  714,  723,  756 
Consumers'    Gfl.s   Trust  Co.   v.  Har- 

less   (131  Ind.  446;  29  X.  E.  Rep. 

1062),  388,   389,  390 


Consumers',  etc.,  Co.  v.  Huntsinger 

(14  Ind.  App.  156;  42  X.  E.  Rep. 

640),  389,  391,  513,  517,  549,  551, 

552,  553,  554 
Consumers'  Gas  Trust  Co.  v.  Perre- 

go    (144  Ind.  350;   43  X.  E.  Rep. 

306;   32  L.  R.  A.   146),  714.   715, 

721,  723,  725,  742,  761 
Consumers'   Oil   Co.  v.   Xunnemaker 

{ 142  Ind.  560 ;  41  X.  E.  Rep.  1048 ; 

51  Am.  St.  Rep.  193),  503 
Conyers  v.  Kirk    (78  Ga.  480;   3  S. 

E.  Rep.  442),  446,  456,  462 
Cook  V.  Anderson  ( 85  Ala.  99 ;  4  So. 

Rep.  713),  778 
Cook  V.  Andrews   (36  Ohio  St.  174), 

130.  162 
Cook  V.  Harris   ( 1  Led.  Raym.  367 ) , 

238 
Cooke  V.  Forbes    (L.  R.  5  Eq.   166; 

37  L.  J.  Ch.  178;  17  L.  T.  (X.  S.) 

371),  663,  674 
Cooney  v.  Hayes    (40  Vt.  478),  247 
Copp  V.   German- American   Ins.   Co. 

(51  Wis.  637;  8  X.  W.  Rep.  127, 

616),   800 
Corbet  v.  Oil  City  Fuel  Supply  Co. 

(5  Pa.   Super.   Ct.   19;   40  W.  N. 

C.  480),  612 
Corbin  v.  Philadelphia    (195  Pa.  St. 

461;   45  Atl.  Rep.  1070;  49  L.  R. 

A.   715).   780 
Corcoran  v.  Milwaukee,  etc.,  Co.  (81 

Wis.    191;    51    X.    W.   Rep.    328). 

793 
Core   V.   X.   Y.,   etc.,   Co.    (43   S.   E. 

Rep.     (W.    Va.)     128),    107,    108, 

114.  123,  190,  217 
Cornell  v.  Lamb   (2  Cow,  652).  251 
Cornish  v.  Farm,  etc.,  Ins.   Oa.    (74 

X.  Y.  295 ) ,  809 
Cosgrove  v.  Troescher  (62  App.  Div. 

(X.    Y.)     123;     70    X.    Y.    Supp. 

764),  6a4.  636 
Cosmos,  etc.,  Co.  v.  Gray  Eagle  Oil 

Co.   (104  Fed.  Rep.  20).  335 
Costigan  v.  Hastier    (2  Sch.  &  Lef. 

160),  367 


xlvi 


TABLE    OF    CASES. 


(References  arc  to  pages.) 


Cosulich  V.   Standard   Oil   Co.    (122 

N.   Y.    118;    25   N.    E.   Rep.    259, 

revising  55  N.  Y.  Super.  Ct.  Rep. 

384),  701,  702,  779 
Cotling    V.    Kansas    City,    etc.,    Co. 

(183  U.   S.  85;   22  Sup.  Ct.   Rep. 

30).  618 
Couch    V.    Rochester,    etc.,    Ins.    Co. 

(25  Hun  469),  801,  822 
Couch  V.  Steel   (3  E.  &  B.  402),  587 
Cougle   V.    National,   etc.,    Co.    ( 165 

Pa.   St.  561;   30  Atl.   Rep.   1038), 

265 
Coulter     V.     Conemaugh     Co.      (30 

Pittsb.   L.   J.    (N.   S.)    281),    187, 

269 
Covington    v.     Commonwealth      ( 19 

Ky.  L.  Rep.   105;   39  S.  W.  Rep. 

836;  173  U.  S.  231),  835 
Covington,  etc.,  Co.  v.  Sandford  ( 164 

U.  S.  578),  430 
Covington   Gaslight   Co.   v.    City   of 

Covington  (84  Ky.  94),  832 
Cowan  V.  Radford  Iron  Co.   (83  Va. 

547;   3  S.  E.  Rep.   120),  71,   165, 

217 
Cowell  V.  Colorado  Springs   (100  U. 

S.  55),  390 
Cox  V.  Bishop  (8  DeG.  M.  &  G.  815; 

26  L.  J.  Ch.  389;  3  Jur.    (N.  S.) 

499;   29  L.  T.  44;   5  W.  R.  437), 

227 
Coy  V.  City  Council   (17  la.  1),  468 
Coy   V.    Indianapolis   Gas   Co.     ( 146 

Ind.   655;   46  N.   E.  Rep.    17;    36 

L.    R.    A.    535;    8    Am.    and    Eng. 

Corp.    Cas.     (N.    S.)     771),    577, 

578,  581,  589,  590 
Craig  V.  Wells   (11  N.  Y.  315),  328 
Crane     v.     Columbus     Construction 

Co.    (73  Fed.  Rep.  984;   46  U.  S. 

App.   52;   20  C   C.  A.  233),   713, 

717,  719 
Craw   V.   Wilson    (22   Nev.    385;    40 

Pac.  Rep.  1076),  310 
Crawford  v.   Bellvere,  etc.,  Gas  Co. 

183    Pa.    St.    227;    38    Atl.    Rep. 

595),  94,  261,  274 


Crawford  v.  Oman,  etc.,  Co.    (12  S. 

E.  Rep.   (S.  C.)   929),  259 
Crawford    v.    Ritchey     (43    W.    Va. 

252;  27  S.  E.  Rep.  220),  68,  148, 

167,  217 
Crawford    v.    Witherbee     (77    Wis. 

419;  46  N.  W.  Rep.  545),  109 
Crawfordsville  v.  Braden    ( 130  Ind. 

149;  28  N.  E.  Rep.  849;   14  L.  R. 

A.    268;    30   Am.    St.    Rep.   214), 

558,  560 
Crawshay  v.  Maule   ( 1  Swanst.  521 ; 

1   Wile.   181),  338 
Creel    v.    Charleston,    etc.,    Gas    Co. 

(51    W.   Va.    129;    41    S.   E.   Rep. 

174),  740,  752 
Crescent  Steel  Co.  v.  Equitable  Gas 

Co.    (23   Pittsb.  Leg.   J.    (N.   S.) 

316),  577,  579,  591,  592,  597 
Creveling  v.  De  Hart    (54  N.  J.  L. 

338;   23  Atl.  Rep.  611),   170,  241, 

245 
Crescent  City  Gaslight  Co.  v.  New 

Orleans  Gaslight  Co.   (27  La.  Ann. 

138),  480,  493,  502 
Creston  W.  W.  Co.  v.  Creston    (101 

la.  687;  70  N.  W.  Rep.  739),  432, 

450,  470,  474 
Croft,   etc..    Gas    Co.    v.    Pryor    (31 

Gas.  J.  386),  788 
Crooke  v.  Flatbush  W.  W.  Co.    (29 

Hun  245),  548 
Cromwell  v.  Stephens    (2  Daly  15), 

612 
Crosby    v.    Montgomery     (108    Ala. 

498;  18  So.  Rep.  723),  588,  603 
Crossley  v.  Lightowler   (L.  R.  2  Ch. 

478;   36  L.  J.  Ch.  584;    16  L.   T. 

(N.  S.)   638;  15  W.  R.  801).  674 
Crouch  V.   Puryear    ( 1   Rand.  258 ) , 

288 
Crouse    v.   Holdman    (19    Ind.    30), 

280 
Crowder  v.  Sullivan   (128  Ind.  486; 

28   N.   E.    Rep.   94;    13    L.    R.    A. 

647),  446,  450,  454,  488,  505 


TABLE    OF    CASES. 


xlvii 


(References  are  to  pages.) 


Crumley  v.  Watauga  Water  Co.   (99 

Tenn.  420;   41   S.  W.  Rep.   1058), 

577,   585 
Cryan   v.    Ridelsperger    (7    Pa.    Co. 

Ct.  Rep.  473),  167,  202,  207 
Crystal  Palace  Gas  Co.  v.  Idris   (82 

L.  T.  200;  64  J.  P.  452),  473 
Culbertson  v.   Fulton    (127    111.   30; 

18  N.  E.  Rep.  781),  450,  451 
Cullins    V.    Flagstaflf,    etc.,    Co.     (2 

Utah  219),  358 
Cumniing   v.    Prescott    (2    Y.   &    C. 

Exch.  488),  352 
Cunningham    v.    Knight     ( 1    Barb. 

399),   329 
Current   v.    Fulton    (10    Ind.    App. 

617;  38  N.  E.  Rep.  419),  615 


D 


Daglish,  Ex  parte,  In  re  Wilde  (L. 
R.  8  Ch.  App.   1072),  647 

Dalzell  V.  Findlay  (5  Ohio  Cir.  Ct. 
435;  3  Ohio  Cir.  Dec.  214,  af- 
firmed 27  Wkly.  L.  Bull.  128), 
597 

Damainville  v.  Mann  (32  N.  Y. 
197),  238 

Daniels  v.  Detwiler  (14  Mont.  Co. 
L.  Rep.  58;  15  Lane.  L.  Rev. 
165),  634,  635 

Danville  v.  Danville  Water  Co.  (178 
111.  299;  53  N.  E.  Rep.  118;  180 
111.  235;  54  N.  E.  Rep.  224;  186 
III.  326;  57  N.  E.  Rep.  1129), 
438 

Danville  Water  Co.  v.  Danville  (180 
U.  S.  619;  21  St.  Ct.  505,  affirm- 
ing 186  111.  326;  57  N.  E.  Rep. 
1129).  439 

Dark  v.  Johnston  (55  Pa.  St.  164), 
79,  81,  82 

Darling  v.  Crowell  (6  N.  H.  421), 
328 

Darlington  v.  Allegheny  (28  Pittsb. 
L.  J.   (N.  S.)    381),  393 

Dartmouth  College  v.  Clough  (8  N. 
H.  22).  246 


Davenport  Gaslight   &   Coke   Co.   v. 

Davenport   (13  la.  229;  15  la.  6), 

446,  458,  472,  473 
Davenport,   etc.,    Ry.    Co.    v.   Daven- 
port  Gaslight   Co.    (43    la.    301), 

546 
Davenport    v.    Kelly     (7     la.     102), 

488 
Davenport      v.       Kleinschmidt       (6 

Mont.    502;     13    Pac.    Rep.    249), 

498,  508 
Davenport  v.  Richmond   (81  Va.  636 

(gunpowder).),   418 
Davens  v.  Merchants',  etc.,  Ins.  Co. 

(7  La.  Ann.  344),  811,  816 
Davidson  v.  Jennings  (27  Colo.  187; 

60    Pac.    Rep.    354;    48    L.    R.    A. 

340),  353 
Davis  V.  Clark   (2  Mont.  310),  323 
Davis  V.  Jefferson  Gas  Co.   (147  Pa. 

St.  130;  23  Atl.  Rep.  218),  396 
Davis  V.  Mayor    (14  N.  Y.  506;   67 

Am.  Dec.  186),  488 
Davis   V.   Moss    (38   Pa.   346),    180, 

194,  198,  641 
Davis    V.    Shephard     (L.    R.    1    Ch. 

App.   410;    35   L.  J.    Ch.   581;    15 

L.  T.   122),  318 
Davis    V.    Smith     (130    Mass.    113), 

512 
Dawson  v.  Kirby   (6  Pa.  Dist.  Rep. 

13;  27  Pittsb.  L.  J.   (N.  S.)  234), 

633 
Dawson  v.  McFaddin   (22  Neb.  131; 

34  N.  W.  Rep.  338),  315 
Dawson  v.   Water   Works   Co.    ( 106 

Ga.  696;  32  S.  E.  Rep.  907),  451 
Dayton    v.    Quigley    (37    N.    J.    Eq. 

77),  605,  607 
Decatur    Gaslight    &    Coke    Co.    v. 

Howell    (92  111.  19),  675 
Decatur  Gaslight  &  Coke  Co.  v.  De- 
catur   (120  111.  67;   11  N.  E.  Rep. 

406,   afflfeiing  24   111.   App.    544), 

598 
Dechert  v.  Municipal,  etc.,  Co.    (57 

N.  Y.  Supp.  225),  756 


slviii 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Decker    v.    Howell     (42    Cal.    636), 

339,  348 
Deckert   v.   Municipal,   etc.,    Co.    (9 

N.    Y.    App.   Div.    573;    41    N.   Y. 

Supp.  692),  681 
Deere  v.  Guest   (1  My.  &  C.  516;  6 

L.  J.  Ch.  69),  537 
Deering,    In  re   (93  N.  Y.  361),  542 
Defiance  Water   Co.  v.   Olinger    (54 

Ohio  St.  532;  44  N.  E.  Rep.  238; 

32  L.   R.   A.   736;    35   Ohio  L.  J. 

323,  350),  685,  731,  736 
Delaware,     etc.,     Co.    v.     Sanderson 

109  Pa.  St.  583),  62,  76,  272,  839 
Delaware,    etc.,    Co.    v.    Von    Storch 

(196    Pa.    St.    102;    46    Atl.    Rep. 

375),  840 
DeMattos   v.   Gibson    (4   DeG.   &   J. 

276),  620 
Den  V.  Post    (25  N.  J.  L.  285),  199 
Denning  v.  Terminal  Ry.    (49  N.  Y. 

App.    Div.    493;    63    N.    Y.    Supp. 

615),  754 
Denniston    v.    Philadelphia    Co.     ( 1 

Super.    (Pa.)    Ct.   599;   38  W.   N. 

C.  332;   27  Pittsb.  L.  J.    (N.  S.) 

14),  393,  730 
Denniston  v.  Philadelphia  Co.    (101 

Pa.    St.   41;    28   Atl.   Rep.    1007), 

393 
Densmore  Oil  Co.  v.  Densmore    (64 

Pa.  St.  43),  312 
Denver   v.   Hubbard    (68    Pac.   Rep. 

(Colo.  Ap.)    993),  454 
Denys    v.    Shuckburgh     (4    Y.    &    C. 

Exch.  42;   5  Jur.  21),  297,  301 
Desloge  v.  Pearce   (38  Mo.  588),  79, 

82,  83,  640 
Des   Moines  v.   Hall    (24    la.    234), 

333 
Des  Moines   \Yater   Co.,   In    re    (48 

la.  324),  833 
Des  Moines  Gas  Co.  v.  Des  Moines 

(44  la.  505),  480,  498,  500 
Des    Moines    St.    Ry.     Co.    v.    Des 

Moines    (73    la.    513;    33    N.    W. 

Rep.    610;    35    N.    W.    Rep.    602), 

480,  489,  490,  508 


Des   Moines   v.   Des   Moines   W.    W. 

Co.    (95   la.   348;   64  N.   W.   Rep. 

269),  433,  463,  464,  465,  612 
Detlor  V.  Holland   (57  Ohio  St.  492; 

49   N.   E.   Rep.  690;    40   L.  R.   A. 

266),   76,   83,   103,   113,   161,   173, 

332 
Detroit    v.    Detroit,    etc.,    Co.     (184 

U.  S.  368;  22  Sup.  Ct.  Rep.  410), 

420 
Detroit  v.  Hosmer  ( 79  Mich.  384 ;  44 

N.  W.  Rep.  622),  455 
Detroit    Gas    Co.    v.    Moreton,    etc., 

Co.     (Ill    Mich.    401;    69    N.    W. 

Rep.  659),  591,  627 
Detroit  v.  Mutual  Gaslight  Co.    (43 

Mich.   594;    5  N.  W.   Rep.    1039), 

536 
Detroit  Pharmacal  Co.  v.  Burt   ( 124 

Mich.   220;    82  N.   W.   Rep.    893), 

171,  242,  245 
Detroit  Citizens'  St.  Ry.  Co.  v.  De- 
troit Ry.    (171  U.  S.  48;    18  Sup. 

Ct.  Rep.  732,  affirming  110  Mich. 

384;    68    N.    W.    Rep.    304),    489, 

563,  564 
Devine  v.  Taylor    (12  Ohio  Cir.  Ct. 

Rep.    723;    4    Ohio   Cir.    Ct.    Dec. 

248;    1   Ohio  Dec.   153),   64,   355, 

360,  361 
Dewey,  A.  A.,  In  re   (9  Copp.  L.  D. 

51),  55 
Dewey  v.  Rogers   (2  Law.  Die.  707), 

55 
D'Eyncourt  v.  Gregory   (L.  R.  3  Eq. 

382),  638 
Diamond  Plate  Glass  Co.  v.  Curless 

(22  Ind.  App.  346;  52  N.  E.  Rep. 

782),  70,  264 
Diamond   Plate  Glass  Co.  v.   Echel- 

barger    (24  Ind.  App.   124;    55  N. 

E.  Rep.  233),  70 
Diamond  Plate  Glass  Co.  v.  Tennell 

(22  Ind.  App.  132;  52  N.  E.  Rep. 

168),  95,   126,  259.  276 
Dicken  v.  Harmer    ( 1   Drew  &   Sm. 

284;    39   L.   J.   Ch.   778;    2   L.   T. 

276),  294 


TABLE    OF    CASES. 


xlix 


(References  are  to  pages.) 


Dickenson  v.  Bolyer    (55  Cal.  285), 

355,  356 
Dickinson  v.   Doodds    (L.   R.   2   Ch. 

Div.  463;  45  L.  J.  Ch.  777;  34  L. 

T.  607;  24  W.  R.  594),  314 
Dickinson  v.  Valpy  ( 10  B.  &  C.  128; 

5  M.  &  Ry.   126;   8  L.  J.    (0.  S.) 

K.  B.   51),  345,  348 
Diehl   V.   Adams   County,   etc.,    Ins. 

Co.    (58  Pa.  St.  443),  801 
Dietz   V.   Mission   Transfer   Co.    (95 

Cal.   92;    30   Pac.    Rep.    380),    94, 

332,  645 
Dietz   V.    Mission   Transfer   Co.     (25 

Pac.   Rep.    (Cal.)    423),   325,   329, 

332 
Dillon    V.    Acme    Oil    Co.     (49    Hun 

565),  661,  662 
Dillon  V.   Washington   Gaslight  Co. 

(1  MacArthur   (D.  C.)   626),  789 
Disher  v.  Disher    (45  Neb.   100;   63 

N.   W.  Rep.  368),  292 
District  of  Columbia  v.  Washington 

Gaslight  Co.    (20  D.  C.  39),  481, 

517,  427 
District  of  Columbia  v.  Washington 

Gaslight  Co.    (9   Mac-key  39;    161 

U.  S.  316),  755 
Dittmer   v.    Germania    Ins.    Co.    (23 

La.  Ann.  458;    8  Am.  Rep.   600), 

809 
Dively  v.  Cedar  Falls    (27  la.  227), 

450 
Dixon  V.  Entriken    (6  Pa.  Dist.  Rep. 

447;    19    Pa.    Co.   Ct.    Rep.   414), 

470,  564,   565 
Dobbins  V.  Los  Angeles  (72  Pac.  Rep. 

(Cal.)    970),  419 
Dobschuetz     v.     Holliday      (82     111. 

371),  641 
Doe  d.  Hanley  v.  Wood    (2  Barn.  & 

Aid.  724),  105 
Doe  V.  Jepson  ( 3  B.  &  Ad.  402 ;  1  L. 

J.  K.  B.  1.54),  199 
Doe  V.   Martin    (4   B.   &   Ad.    785), 

318 
Doe  V.  Masters  (2  B.  &  C.  490),  199 


Donahue  v.  Kelly    (181   Pa.  St.  93; 

37  Atl.  Rep.  186;  59  Am.  St.  Rep. 

632),   779 
Donahoe  v.  Rich    (2  Ind.  App.  540; 

28 -N.  E.  Rep.  1001),  172,  242 
Donahue   v.   Wabash,   etc.,   Co.    (83 

Pa.  St.  560),  780 
Dooley  v.  Watson  (1  Gray  414),  124 
Dorr  V.   Danville   Gaslight  Co.    (18 

Hun  274),  664 
Double  V.  Union  Heat,  etc.,  Co.  (172 

Pa.  §t.  388;  37  W.  N.  C.  389;  33 

Atl.  Rep.  694),  154 
Doubleday  v.  Muskett   (4  Moo.  &  P. 

750;  7  Bing.  110;  9  L.  J.   (0.  S.) 

C.  P.  35),  345 
Douglass    V.     Placerville     (18     Cal. 

644),  563 
Dougherty  v.  Creary    (30  Cal.  290; 

89  Am.  Dec.  116),  347 
Douthett    V.    Gibson     (11    Pa.    Sup. 

Ct.  Rep.  540),  267 
Dover  Gaslight  Co.  v.  Dover  ( 7  DeG. 

M.  &  G.   545;  4  Gas  J.   129,  176; 

1   Jur.    (N.  S.)    812),  391 
Dover  v.   Main   Water  Co.    (90  Me. 

180;   38  Atl.  Rep.   101),  832 
Dow  V.  Winnipesaukee  Gas,  etc.,  Co. 

(69  N.  H.  312;  41  Atl.  Rep.  288; 

42  L.  R.  A.  569),  706,  712,  729 
Dowe  V.  Faneuil  Hall  Ins.  Co.    (127 

Mass.   346),   805 
Dower  v.  Richards    (151  U.  S.  658; 

14  Sup.  Ct.  Rep.  452),  335 
Downing  v.  State  (66  Ga.  160),  786 
Drake  v.  Lacoe    (157  Pa.  St.  17;  27 

Atl.  Rep.  538),  217,  277 
Dresser  v.   Transporting  Co.    (8   W. 

Va.  553),  278 
Driscoll  v.   Public  Board   of  Works 

(14  T.  L.  Rep.  99;   02  J.  P.  40), 

.545 
DuBois    V.    DuBois,    etc.,    Co.     (176 

Pa.  St.  430;  35  Atl.  Rep.  248;  38 

W.  N.   0^417;    34  L.  R.  A.  92), 

447.  460 
Dubuque    v.    Benson    (23    la.    248), 

334 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Dudley  v.  Warde    (Amb.   113),  642, 

646 
Duff's   Appeal    (21   W.   N.   C.   490), 

251,  272,  370,  371 
Duffield  V.  Hue   (129  Pa.  St.  94;  18 

Atl.  Rep.  566),  73,  95,  140,  192 
Duffield   V.    Hue    (136    Pa.    St.   602; 

20  Atl.  Rep.  526;   129  Pa.  St.  94; 

18  Atl.  Rep.  566),  106,  120,  126 
Duffield  V.   Michaels    (97   Fed.   Rep. 

825),   105 
Duffield  V.  Michaels    (102  Fed.  Rep. 

820;    42    C.    C.    A.   649;    97    Fed. 

Rep.  825),  150,  192,  195,  196,  214 
Duffield  V.  Russell   ( 19  Ohio  Cir.  Ct. 

Rep.  266;  10  Ohio  C.  D.  472),  113, 

151 
Duffield  V.  Rosenzweig   ( 144  Pa.  St. 

520;   23  Atl.  Rep.  4;   150  Pa.  St. 

543;  24  Atl.  Rep.  705),  106,  120, 

124,  125 
Duffus   V.   Howard   Furnace   Co.    (8 

N.   Y.   App.   Div.    567 ;    40   N.   Y. 
.    Supp.  925),  631,  636 
Duke  V.  Hague   (107  Pa.  St.  66),  72, 

75,  81 
Dunat's  Est.,  hi  re  (29  Pittsb.  L.  J. 

105),  76 
Duncan    v.    Sun    Fire    Ins.    Co.     (6 

Wend.  488),  801,  802 
Dunlap    Steamboat    v.    Reliance     (2 

Fed.  Rep.  249),   703 
Dunham    v.    Kirkpatrick     (101    Pa. 

St.  43),  31,  329,  331 
Dunham   v.    Lovewek    (158    Pa.    St. 

197;  27  Atl.  Rep.  990),  342 
Durant   Mining   Co.   v.    Percy,    etc., 

Co.   (93  Fed.  Rep.  166),  49 
Duryea  v.  Burt   (28  Cal.  569),  350, 

351 
Dyke   v.   National   Transit   Co.    (22 

N.   Y.   App.   Div.   360;    49   N.   Y. 

Supp.  180),  49,  125 

E 

Eads  V.  Retherford    (114   Ind.  273; 
16  N.  E.  Rep.  587),  308 


Eads  V.  Williams  (24  L.  J.  (N.  S.) 
Ch.  531;  4  DeG.  M.  &  G.  674;  11 
Jur.  (N.  S.)  193;  3  W.  R.  98;  24 
L.  T.  162),  319 

Eaman  v.  Bashfdrd  (37  Pac.  Rep. 
(Ariz.)   24),  354 

Earl  of  Mansfield  v.  Blackburne  (3 
Scott  (N.  S.)  820;  6  Bing.  N.  C. 
427),  647 

Early  v.  Friend  (16  Gratt.  21;  78 
Am.  Dec.  649),  303 

East  Jersey  Co.  v.  Wright  ( 32  N.  J. 
Eq.  248),  63,  79,  82,  105,  106, 
163 

East  River  Gaslight  Co.  v.  Donnelly 
(25  Hun  614),  455 

East  St.  Louis  v.  East  St.  Louis 
Gas,  etc.,  Co.  (98  HI.  415;  38  Am. 
Rep.  97),  427,  450,  464 

East  Sugar  Loaf  Coal  Co.  v.  Wilbur 
(5  Pa.  Dist.  Rep.  202),  639 

Eaton  V.  Allegany  Gas  Co.  (122  N. 
Y.  416;  25  N.  E.  Rep.  981,  revers- 
ing 42  Hun  61),  68,  152,  161,  189, 
190 

Eaton  V.  Wilcox  (42  Hun  61^,  99, 
136,  142 

Eaves  v.  Estes  (10  Kan.  314),  631 

Eclipse  Oil  Co.  v.  South  Penn.  Oil 
Co.  (47  W.  Va.  84;  34  S.  E.  Rep. 
923),  84,  85,  92 

Economic  Fuel  Gas  Co.  v.  Myers 
(168  HI.  139;  49  N.  E.  Rep.  66, 
affirming  64  111.  App.  270;  1  Chic. 
L.  J.  Wkly.  276),  754 

Edgevvare  Highway  Board  v.  Har- 
row District  Gas  Co.  (L.  R.  10 
Q.  B.  92;  44  L.  J.  Q.  B.  1;  31  L. 
T.  (N.  S.)  402;  23  W.  R.  90), 
543 

Edison  Electric,  etc.,  Co.  v.  Jacobs 
(8  Kulp.  120),  454 

Edmonds  v.  Mounsey  (15  Ind  App. 
399;  44  N.  E.  Rep.  196),  112,  224, 
231,  238,  239,  259,  267,  270,  309 

Edwards  v.  Allouez  Mining  Co.  (38 
Mich.  46),  654 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Edwards  v.  lola  Gas  Co.    (65  Kan. 

— ;   69  Pac.   Rep.  350),   114,  176, 

210,  217,  218,  219 
Edwards  v.   McClurg    (39    Ohio   St. 

41),  77 
Edwards   v.    Woodbury    ( 1    McCray 

429;  3  Feu.  Rep.  14),  366 
Edwards    County    v.    Jennings     (89 

Tex.  618;  35  S.  W.  Rep.  1053,  af- 
firming 33  S.  W.  Rep.  585),  498 
Effinger  v.  Hall   (81  Va.  94),  292 
Elder    v.    Lykens    Valley    Coal    Co. 

(157    Pa.    St.    490;    27    Atl.    Rep. 

545),  654 
Eldredge  v.  Bell    (64  la.  125;   19  N. 

W.  Rep.  879),  247 
Electric    City,     etc.,     Co.     v.     West 

Bridge,  etc.,  Co.   (187  Pa.  St.  500; 

41  Atl.  Rep.  458),  109 
Eley's    Appeal    (103    Pa.    St.    300), 

287,  290 
Elias  V.  Snowden  Slate  Co.   (4  App. 

Cas.  455 ;  48  L.  J.  Ch.  203 ;  26  W. 

R.  869;  38  L.  T.  871;  8  Ch.  Div. 

521;  46  L.  J.  Ch.  806;  48  L.  J.), 

287,  371,  372,  374,  376 
Elk  Fork  Oil  &  Gas  Co.  v.  Jennings 

(84  Fed.  Rep.   839),  68,  83,   113, 

114.  120,  147,  150.  192,  201,  205 
Elkins  V.  McKean  (79  Pa.  St.  493), 

785,  786 
Elliott  V.  Bishop   (24  L.  J.  Exch.  p. 

39;    42    L.    J.    Exch.    p.    229;    10 

Exch.  496),  638 
Ellis    V.    London    Gaslight   Co.     (32 

Gas  J.  849),  620,  712,  762 
Ellis   V.    Sheffield   Gas,   etc.,   Co.    (2 

El.  &  B.  757;   18  Jur.  146),  788 
EUinwood    v.    Reedsburg     (91    Wis. 

131;  64  X.  W.  Rep.  885),  561 
Elmhurst  v.  Spencer    (2  Mac.  N.  & 

G.  45),   674 
Elmira   Gaslight   Co.   v.   Elmira    (2 

Alb.  L.  Jr.  392).  464.  498 
Elms  V.  Randall   (4  Dana  519),  246 


Elyria  Gas,  etc.,   Co.  v.  Elyria    (57 

Ohio  St.  374;  49  N.  E.  Rep.  335, 

reversing  14  Ohio  C.  C.  Rep.  219; 

7  Ohio  Dec.  527 ;  38  Wkly  L.  Bull. 

200;   39  Wkly.  L.  Bull.  139),  566 
Emerine    v.    Steel    (8    Ohio    C.    Ct. 

Rep.  381;  4  Ohio  C.  Dec.  92),  109 
Emerson   v.    Babcock    (66    la.    257; 

55  Am.  Rep.  273),  514 
Emerson  v.  Commonwealth   (108  Pa. 

St.  HI;  15  W.  N.  C.  425;  42  Leg. 

Int.  8i),  52,  491,  501,  529 
Emerson  v.  Lowell   (3  Allen  410;  6 

Allen  146;  83  Am.  Dec.  621),  682, 

715,  716,  743,  757,  758,  759 
Emerson  v.  Lowell  Gaslight  Co.    (6 

Allen    146;    83    Am.    Dec.    621;    3 

Allen  410),  760,  761 
Emery  v.  Ledeque   (6  Tex.  Civ.  App. 

719;  72  S.  W.  Rep.  602),  72 
Empire  Transportation  Co.  v.  Wam- 

setta,   etc.,   Co.    (63   Pa.   St.    14), 

404 
Engel  V.  Fitch    (L.  R.  3  Q.  B.  314; 

9  B.  J.  S.  85 ;  37  L.  J.  Q.  B.  145 ; 

18  L.  T.  318;   16  W.  R.  785),  320 
Engleberth  v.  Troxell   (40  Xeb.  195; 

58  N.  W.  Rep.  852),  280 
Enterprise  Oil  &  Gas  Co.  v.  National 

Transit  Co.    (172  Pa.  St.  421;  26 

Pittsb.  L.  J.    (N.  S.)    314;  37  W. 

N.  C.  473;   33  Atl.  Rep.  687),  56, 

297,  301,  304,  388 
Epping  V.  Columbus    (43  S.  E.  Rep. 

(Ga.)    803),  451 
Erie  Mining  &  Natural   Gas  Co.  v. 

Gas  Fuel  Co.    (15  W.  N.  C.  399), 

491 
Ernest  v.   New   Orleans   W.   W.    Co. 

(39  La.  Ann.  5.50).  619 
Erving  v.  New  York  City  (131  N.  Y. 

133;  29  N.  E.  Rep.  1101.  affirming 

16  N.  Y.  Supp.  612),  456 
Erskine  v.   Forest  Oil  Co.    (80  Fed. 

Rep.  53^).  119,  120,  140.  326,  327 
ErAdn  V.   ilasterman    ( 16  Ohio  Cir. 

Ct.    Rep.    62;    8   Ohio   Dec.    516), 

349,  350 


Hi 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Esberg-Trust  Cigar   Co.   v.   Poitland 
(34  Ore.  282;   55  Pac.  Rep.  961), 

722 
Etowah  Mining  Co.  v.  Wills  Valley, 

etc.,    Co.     (121    Ala.    672;    25    So. 

Rep.  720),  110 
Eufaula    Water    Co.    v.    Addystone 

Water   Co.    (89   Ala.    522;    8    So. 

Rep.  25),   363 
Eureka  Light-Ice  Co.  v.  Eureka    (5 

Kan.  App.  669;  48  Pac.  Rep.  935), 

501 
Evans  v.  Consumers'  Gas  Trust  Co. 

(29  N.  E.  Rep.   (Ind.)   398;  31  L. 

R.  A.  673),  257,  259 
Evans    v.    Grand    Rapids,    etc.,    Ry. 

(68    Mich.    602;    36    N.    W.    Rep. 

687),  284 
Evans    v.    Haefner     (29    Mo.    141), 

333 
Evans    v.    Hoggatt     (9    Kan.    App. 

540;  59  Pac.  Rep.  381),  777 
Evans  v.  Keystone  Gas  Co.   (148  N. 

Y.  112;  42  N.  E.  Rep.  513;  30  L. 

R.  A.  651;   51  Am.  St.  Rep.  681, 

affirming  72  Hun  503;   25  N.  Y. 

Supp.  191;  28  Chic.  L.  News  160), 

729,  766,  761 
Everett    v.    London   Assurance    Co., 

804 


F 


Footway,  Mitcham  Gas  Co.  v.  Wim- 
bledon Local  Board  (30  Gas  J. 
600),  391 

Forbes  v.  Gracey  (94  U.  S.  762),  42, 
840 

Ford  V.  Brooklyn  Gaslight  Co.  (3 
Hun  621),  601,  602 

Ford  V.  Buchanan  (111  Pa.  St.  31; 
2  Atl.  Rep.  339),  52 

Ford  V.  Cobb  (20  N.  Y.  344),  631 

Forney  v.  Ward  (62  S.  W.  Rep. 
(Te.x.  Civ.  App.)  108),  113,  208, 
216 

Forst  V.  Belmont  (6  Allen  152),  563 


Fort    Orange    Oil    Co.    v.    Wichman 

(17  Ohio  Cir.  Ct.  Rep.  57;  9  Ohio 

Cir.  Dec.  650),  99,  253 
Forty  Fort  v.  Forty  Fort  Water  Co. 

(9  Kulp.   (Pa.)  241),  467 
Fosdick  V.   Schall    (99   U.    S.   235), 

631 
Foss  V.  Harbottle  (2  Hare  489),  311 
Foster   v.   Cape   May    (60   N.    J.   L. 

78;   36  Atl.  Rep.  1089).  476 
Foster    v.    Elk    Fork,    etc.,    Co.     (90 

Fed.  Rep.  178;  61  U.  S.  App.  576; 

32  C.  C.  A.  560),  48,  68,  84,  124, 

147 
Foster  v.   Findlay    (5  Ohio  Cir.  Ct. 

455;    3  Ohio  Cir.  Dec.  224),  443, 

570 
Foster   v.    Philadelphia   Gas    Works 

Trustees     (12    Phila.     511),    620, 

625 
Foster  v.   Runk    (109   Pa.  St.  291), 

329 
Foster  v.   Weaver    (118  Pa.  St.  42; 

12  Atl.  Rep.  313),  292,  305 
Fowler    v.    Brooklyn    Gaslight    Co. 

(17  Gas  J.  908),  602 
Fowler    v.    F.    C.    Austin    Mfg.    Co. 

(5  Ind.  App.  489;   32  N.  E.  R3p. 

596),  468 
Fox  V.  Frith   (10  M.  &  W.  131;  Car. 

&  M.   502;    11   L.  J.   Exch.   336), 

346 
Fraim    v.    National    Fire    Ins.    Co. 

(170  Pa.  St.  151;  37  W.  N.  C.  39; 

32  Atl.  Rep.  613),  810,  817 
Fi'ancoeur    v.    Newhouse     (43    Fed. 

Rep.  236),  335 
Frank  v.  Maguire    (42  Pa.  St.  82), 

171,  240,  245 
Franklin  Coal  Co.  v.  McMillan    (49 

Md.  549 ) ,  49,  289 
Franklin  Co.  v.   Coal  Co.    (43  Kan. 

518;   23  Pac.  Rep.  630),  74 
Franklin   Land    Co.   v.    Wea   Gas   & 

Coal   Co.    (43   Kan.  518;   23   Pac. 

Rep.  630),  284,  286 


TABLE   or   CASES. 


liii 


(References  are  to  pages.) 


Frankfort  v.  Capitol  City,  etc.,  Co. 

16    Ky.   L.    Rep.    780;    29    S.    W, 

Rep.  855),  571 
Fratt  V.  Wliittier    (58  Cal.   126;  41 

Am.  Rep.  251),  635 
Freeport  Borough  v.  Enterprise  Nat- 
ural Gas  Co.    (18  Pa.   Super.  Ct. 

73),  460,  528,  578,  600 
Freeport  Water  Co.  v.  Freeport  ( 186 

III.  179;  57  N.  E.  Rep.  862),  438 
Freeport  Water  Co.  v.  Freeport  City 

(180  U.  S.  587;  21  S.  Ct.  493,  af- 
firming   186    111.    179;    57    N.    E. 

Rep.  862),  421,   439 
Freeport   W.   W.   Co.   v.   Pragen    (3 

Pa.  Ct.  Rep.  371),  481 
Freeman  v.  Freeman   (43  N.  Y.  34; 

3  Am.  Rep.  657),  315 
Freeman    v.    Memenway      (75     Mo. 

App.  611),  339 
Freer  v.  Stotenbur   ( 2  Keyes  467 ;  2 

Abb.  Dec.   189,  reversing  36  Barb. 

641),  285 
French  v.  Burlington   (42  la.  614), 

4.50 
French    v.    Macale     (2    Dru.    &    W. 

274).   124 
Friburk    v.    Standard    Oil    Co.     (66 

Minn.  277;  68  N.  W.  Rep.  1090), 

664,  065,  666 
Friedlander  v.  Rider    (30  Neb.  783; 

47  N.  W.  Rep.  83 ) ,  639 
Friend  v.  Mallory    (52   W.  Va.  — ; 

43  S.  E.  Rep.  114),  192,  194,  195, 

202.  277 
Friend  v.  Porter    (50  Mo.  App.  89), 

333 
Frothingham    v.    Benson    (20   Misc. 

132;  44  N.  Y.  Supp.  879).  625 
Frye  v.  Bath  Gas,  etc.,  Co.   (94  Me. 

17;  46  Atl.  Rep.  804),  791 
Fuchs  V.  St.  Louis  (133  Mo.  168;  31 

S.   W.   Rep.    115;    34   S.    W.   Rep. 

508;  34  L.  R.  A.  118),  698,  777 
Fuher    v.    Buckeye    Supply    Co.     (5 

Ohio   C.    PI.    187;    7    Ohio    N.   P. 

420),  380 


Fulmer's   Appeal    (128   Pa.   St.   24; 

18  Atl.  Rep.  493),  296,  301 
Fulton  V.  Stuart    (2  Ohio  215),  246 
Funk  V.  Brigaldi   (4  Daly  359),  633 
Funk     V.     Haldenian     (53     Pa.     St. 

229),  32,   33,   72,   80,   81,   82,    83, 

97,   105,   106,  330 
Fisher    v.   Baden  Gas   Co.    (138   Pa. 

St.  301;    22  Atl.  Rep.   29),  392 
Fisher  v.  Dixon   (12  CI.  &  F.  312), 

642,   646 
Fisher    v.    Dunning     (53    Mo.    App. 

548),    191 
Fisher  v.  Guffey    (193  Pa.  St.  393; 

44  Atl.   Rep.  459),  244 
Fisher  v.  Milliken   (8  Pa.  St.  Ill), 

226,   245 
Fisher  v.  Rochester    (6  Lans.  225), 

333 
Fitchburgh,    etc.,    Corp.    v.    Melven 

(15  Mass.   268),   366 
Flack,   In  re    ([1900]    2  Q.  B.   32), 

610 
Flagstaff,  etc.,   Co.   v.   Cullins    (104 

U.  S.  176),  358 
Fleming   v.   Montgomery   Light   Co. 

(100  Ala.  657;   13  So.  Rep.  618), 

627,   686 
Fleming   Oil    &    Gas    Co.    v.    South 

Penn.    Oil   Co.    (37   W.   Va.   645; 

17  S.  E.  Rep.  203),  113,  135,  208, 

216 
Fletcher     v.     Ry  lands      (L.     R.     1 

Exch.),   683 
Flick  V.  Bell    (42  Pac.  Rep.    (Cal.) 

813),  394 
Flint   V.   Glouster    Gaslight   Co.    (3 

Allen    343;    9    Allen    552),    692, 

708,  733,  739,  754 
Floyd,  In  re   ([1897]  1  Ch.  633;  66 

L.  J.  Ch.  350;  76  L.  T.  251;  45 

W.  R.   4^5),   606 
Flory     V.     Hellero      (1     Monaghan 

(Pa.)    478),    839 
Flureau    v.    Thornhill     (2    W.    Bl. 

1078),   320 


liv 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Flynn    v.    White    Breast    Coal    Co. 

(92  la.  738;  32  N.  W.  Rep.  471), 

87,  91,  258 
Fogarty  v.   Junction  City,  etc.,   Co. 

50  Kan.  478;  31   Pac.  Rep.   1052; 

18  L.  R.  A.  756),  663 
Foland  v.  Frankton   (142  Ind.  546; 

41  N.  E.  Rep.  1031),  454,  468 
Foley  V.  Fletcher    (3  H.  &  N.  779; 

2  L.  J.  Exch.  100;  5  Jur.   (N.  S.) 

342;   7  W.  R.  141;   33  L.  T.    11), 

272 
Folkstone   v.    Downing    (54   Gas   J. 

313),   547 
Fellwood    V.    Pearson     (23    Gas    J. 

248),   759 
Folsom   V.    Cragen    (11    Colo.    205; 

17  Pac.  Rep.  515),  354,  361 
Fonda  v.  Sage   (46  Barb.  109),   199 
Fond  du  Lac  Water  Co.  v.  Fond  du 

Lac   (82  Wis.  322;  52  N.  W.  Rep. 

439;    16  L.  R.  A.   581),  834 
Foote   V.   Fire   Department    (5   Hill 

99    [gunpowder]),   418 
Fennell  v.  Guflfey   (139  Pa.  St.  341; 

20   Atl.    Rep.    1048;    155    Pa.    St. 

38;   29  Atl.   Rep.   785),   109,   111, 

232,   238 
Ferens   v.    O'Brien    (11    Q.    B.   Div. 

21;    15  Cox  C.  C.  332),  843 
Fergus   Falls   V  ater   Co.   v.   Fergus 

Falls    (65    Fed.    Rep.    586),    489, 

508 
Ferguson  v.  Boston  Co.    (170  Mass. 

182;    49    N.    E.    Rep.    115),    708, 

728,   766 
Ferguson   v.   Metropolitan   Gaslight 

Co.    (38   N.   Y.    Supr.    185),   577, 

587.  618 
Ferguson   v.    Wilson    (L.    R.    2    Ch. 

App.   77;    15  W.  R.  27),  352 
Fernandez    v.    Burleson     (110    Cal. 

164;  42  Pac.  Rep.  566),  362 
Fertilizing    Co.   v.   Hyde   Park    (97 

U.  S.  659),  420,  663 


Fidelity,     etc.,     Co.     v.     W^ate.man 

(161  111.  632;  44  N.  E.  Rep.  283; 

32  L.  R.  A.  654,  affirming  59  111. 

App.  297),  829' 
Findlay  v.   Carson    (97   la.   537;   06 

N.  W.  Rep.  759),  110 
Findlay   v.    Parker    (17    Ohio   C.    C. 

294;    9  Ohio   Cir.   Dec.   710),   571 
Findlay  v.   Smith    (0  Munf.   134;    8 

Am.  Dec.  733),  288,  289,  291 
Findlay  Gaslight  Co.  v.  Findlay    (2 

Ohio    Cir.    Ct.    Rep.    237;    1    Ohio 

Cir.  Dec.  463),  529 
Finegan   v.    Fall    River    Gas    Works 

(159    Mass.    311;    34    N.    E.    Rep. 

523),    741,    750 
Finnegan  v.  Pennsylvania  Trust  Co. 

(144  Pa.  St.   013),  272 
Finnegan  v.  Steinner   (28  Pittsb.  L. 

J.    (N.   S.)    68;    5   Pa.   Super.   Ct. 

Rep.    127),    326 
Fireman's  Ins.  Co.  v.  Cecil    (12  Ky. 

L.  Rep.  48,  259),  799 
Fireman's    Fund    Ins.    Co.    v.    Sher- 
man   (20  Tex.   Civ.  App.   343;   50 

S.  W.  Rep.  598),  814 
First      Congregational      Church     v. 

Holyoke,  eic,  Ins.  Co.   (158  Mass. 

475;    33  N.  E.  Rep.  572;    35  Am. 

St.  Rep.   508;    19  L.   R.  A.   587), 

797,   813,    820 
First    National    Bank    v.    Dow     (41 

Hun  13),  64,  77,  334,  360 
First    National    Bank    v.    Harkness 

(42  W.  Va.  156;  24  S.  E.  548;  32 

L.  R.  A.  408),  56 
First     National     Bank     v.     Sheafer 

(149    Pa.    St.    236;    24   Atl.   Rep. 

221).   309 
Fagan  v.  Long   (30  Mo.  222),  351 
Fairchild    v.    Dunbar    (128    Pa.    St. 

485;    18    Atl.    Rep.    443),    76,    77, 

83 
Fairchild  v.   Fairchild    (9  Atl.  Rep. 

(Pa.)    255),   272,  287,   290 
Fall     River     v.     Bristol     Co.      (125 

Mass.   567),   833 


TABLE   OF   CASES. 


Iv 


(References  arc  to  pages.) 


Fanker    v.    Anderson    ( 173    Pa.    St. 

86;  34  Atl.  Rep.  434),  254,  256 
Fare  v.  Bath  Gaslight  Co.    (25  Gas 

J.  566),  723,   763 
Farmers',  etc.,  Ins.  Co.  v.  Nixon   (2 

Colo.    App.     265;     30    Pac.     Rep. 

42),  822,   825 
Farmers'    Loan,    etc.,    Co.    v.    Iowa 

Water    Co.    (78    Fed.    Rep.    881), 

381 
Farmers'  etc.,   Ins.   Co.  v.   Simmons 

(30  Pa.  St.  299),  802 
Farnum    v.    Piatt     (8    Pick.    339), 

329 
Faulker  v.  Central  Fire  Ins.  Co.   ( 1 

Kerr   (N.  B.)   279),  801 
Faust    V.    American    Fire    Ins.    Co. 

(91    Wis.    158;    64    N.    W.    Rep. 

883;    30  L.  R.  A.  783),   795,  816 
Fawcett  v.   Whitehouse    ( 1   Russ.  & 

M.   132),  312 
Fechet    v.     Drake     (12     Pac.     Rep. 

(Ariz.)    694),  645 
Federal  Oil  Co.  v.  Western  Oil  Co. 

(112    Fed.    Rep.    373),    85,    145, 

198 
Felix   V.    Patrick    (145    U.    S.    317; 

12   Sup.  Ct.  Rep.  862),  92 
Fellows    V.    Walker    (39    Fed.    Rep. 

651),  470,  434,  559 

G 

G.  V.  B.  Mine  Co.  v.  First  National 

Bank    (95  Fed.  Rep.  23;   36  C.  C. 

A.    633),    350 
G.  B.  Mining  Co.  v.  First  National 

Bank   (95  Fed.  Rep.  35;  35  C.  C. 

A.    510,    affirming    89    Fed.    Rep. 

449),  368 
G.  C.  T.  Railroad  Tax  Case   (92  U. 

S.  575) ,  837 
Gadbury  v.  Ohio,  etc.,  Gas  Co.    (65 

N.    E.    Rep.     (Ind.    App.)     289), 

211,   217 
Gadbury  v.  Ohio,  etc.,  Co.  (67  N.  E. 

Rep.    (Ind.)    259),  67,  68,  69,  70, 

127,   129,  145,   148,    161,   166,   172, 

174,  176,  182,  190,  197,  199,  217 


Gage  V.   Wheeler    (129   111.    197;    21 

N.  E.  Rep.  1075),  284 
Gaines  v.  Green  Pond  Iron  Mining 

Co.    (33  N.  J.  Eq.   603,  reversing 

39  N.  J.  Eq.  86),  287,  288 
Galbreath  v.  Armour    (4   Bell  App. 

Cases  374),  552 
Gale  V.  Kalamazoo    (23  Mich.  344; 

9  Am.  Rep.  80),  488,  507 
Gale   V.    Petroleum   Co.    (6   W.   Va. 

200),    75 
Galey    v.    Kellerman     (123    Pa.    St. 

491;    23    W.   N.    C.    139;    16   Atl. 

Rep.    474),    121,    122,    181,    183, 

266 
Gallagher    v.    Kemmerer     (144    Pa. 

St.  509;  22  Atl.  Rep.  970),  654 
Gannon  v.  Patterson    (193  111.  372; 

62  N.  E.  Rep.  210),  288 
Ganter  v.   Atkinson    (35   Wis.   48), 

74 
Gardner  v.  Resumption,  etc.,  Co.   (4 

Colo.    App.    271;     35    Pac.    Rep. 

674),   361 
Garman  v.  Potts    (135  Pa.  St.  506; 

26   W.   N.    C.    305;    19   Atl.   Rep. 

1071),   154,   157 
Garretson    v.    Merchants',    etc.,    Co. 

(81  la.  727;  45  N.  W.  Rep.  1047), 

824,  826 
Garrison  v.  CSiicago    (7  Biss.  480), 

426,  446,  469,  488,  505,  507 
Gartside    v.    Outley    (58    111.    210), 

74,  286 
Gas    Co.    V.    Pittsburg    (101    U.    S. 

219),  836 
Gas    &    Water    Co.    v.    Dowingion 

(175    Pa.    St.    341;    38    W.    N.    C. 

376;  34  Atl.  Rep.  799),  481,  497 
Gaslight  &  Coke  Co.,  In  re  (57  Gas 

J.  1196),  624 
Gaslight  O^  v.  Donnelly   (93  N.  Y. 

557),  455 
Gaslight  &  Coke  Co.  v.  Hardy    (17 

Q.  B.  Div.  619),  606 


Ivi 


TABLE  OF   CASES. 


(References  are  to  pages.) 


Gaslight  &  Coke  Co.   v.  Hardy    (17 

Q.   B.   Div.    619;    56   L.   J.    Q.   B. 

168;   55  L.  T.  585;   36  W.  K.  50; 

51  J.  P.  6),  632 
Gaslight    &    Coke    Co.    v.    Herbert 

Smith    (3    Times   Law   Rep.    15), 

632 
Gaslight  &   Coke   Co.   v.   Mead    (45 

L.  J.  M.  C.  71),  607 
Gaslight,   etc.,    Co.   v.    New   Albany 

(156    Ind.    406;    59    N.    E.    Rep. 

176),   446,  453,   458,   461,   465 
Gaslight  &  Coke  Co.  v.   St.   George 

Vestry    (42  L.   J.    (N.   S.   Q.   B.) 

50),  393,  587 
Gaslight   &   Coke   Co.   v.    Vestry   of 

St.  Mary   (15  Q.  B.  Div.  1;  54  L. 

J.  Q.  B.  414;  53  L.  T.  457;  33  W. 

R.  892;  49  J.  P.  459),  545 
Gavigan  v.   Atlantic   Ref.   Co.    (186 

Pa.    St.    604;    40   Atl.   Rep.    8.34), 

6C2,  665,  666 
Gee  V.  Pearse   (2  DeG.  &  Sm.  325), 

319 
Geiger    v.     Green     (4     Gill     (Md.) 

472),  82 
Genet  v.  Delaware,  etc.,  Co.    (35  N. 

Y.    Supp.    147;     13    N.    Y.    Misc. 

Rep.  409),  62 
Genet   v.    Delaware,    etc.,    Co.     (136 

N.  Y.   593;    32   N.   E.   Rep.    1078, 

reversing  122  N.  Y.  505;  25  N.  E. 

Rep.  956),  62 
Georgia    Home    Ins.    Co.    v.    Jacobs 

(56  Tex.  366),  824 
Gerkins  v.  Kentucky  Salt  Co.  (36  S. 

W.  Rep.    (Ky.)    1),  289,  293,294 
Gerkins  v.  Kentucky  Salt  Co.    (100 

Ky.    734;    .39    S.    W.    Rep.    444), 

289,  293,  294 
German  Fire  Ins.  Co.  v.  Board    (54 

Kan.     732;     39    Pac.    Rep.    697), 

802 
Germania   Fire   Ins.   Co.   v.    Klewer 

(129  111.  599;  22  N.  E.  Rep.  489), 

801 


German  Ins.  Co.  v.  Roost   (55  Ohio 

St.  581;   45  N.  E.  Rep.   1097;    36 

L.  R.  A.  236),  804 
German   Ins.   Co.   v.   Standard   Gas- 
light  Co.     (70   N.   Y.    Supp    384; 

34  N.  Y.  Misc.  Rep.  594),  728 
German- American       Ins.       Co.       v. 

Standard  Gaslight  Co.    (67  N.  Y. 

App.    Div.    539;    73    N.    Y.    Supp. 

973),   735,  742,  746 
German- American      Ins.       Co.        v. 

Standard   Gaslight  Co.    (34  Misc. 

594;    70  N.  Y.   Supp.   384;    67  N. 

Y.  App.  Div.  539;  73  N.  Y.  Supp. 

973),  826 
German  Mining  Co.,  In  re   (4  DeG. 

M.  &  G.  19;   24  L.  J.  Ch.  41;    18 

Jur.  710;   23  L.   T.    (0.  S.)    200; 

2   W.    R.    543),    348 
Gesner  v.  Cairns    (2  Allen    (N.  B.) 

595),  32 
Gesner  v.  Gas  Co.    (James    (N.  B.), 

72),  32 
Ghee    v.    Northern    Union    Gas    Co. 

(158   N.   Y.   510;    53   N.   E.   Rep. 

692,  reversing  34  N.  Y.  App.  Div. 

551;    56  N.  Y.  Supp.  450).  515 
Gibben  v.  Atkinson    (64  Mich.  651; 

31  N.  W.  Rep.  570),  76 
Gibbs  V.  Consolidated  Gas  Co.    ( 130 

U.  S.  396;   9  Sup.  Ct.  Rep.  553), 

503,   527,  536,  538,   577 
Gibney  v.   State    (137   N.   Y.   1;    33 

N.  E.  Rep.  142;   19  L.  R.  A.  365), 

780 
Gibson  v.  Leonard   (143  111.  182;  32 

N.   E.  Rep.   182,  affirming  37   HI. 

App.    344).   408 
Gibson   v.   Mullican    (58  Tex.  430), 

246 
Gibson  v.  Oliver    (158  Pa.  St.  277; 

27  Atl.  Rep.  961),  131 
Giffin     V.     Southwest,     etc.,     Lines 

(172    Pa.    St.    580;    33    Atl.    Rep. 

578).  44 
Gill   V.    Weston    (110   Pa.    St.    .*^05; 

1  Atl.  Rep.  921),  330,  369,  645 


TABLE  OF   CASES. 


Ivii 


(References  are  to  pages.) 


Gilbert's   Case    (L.   R.    5    Ch.    App. 

559;  18  \Y.  R.  938),  352 
Gilbert  v.  Jess    (31   Wis.   110),   104 
Gillett  V.    Treganza    (6   Wis.   343), 

63 
Gillispie   Tool    Co.    v.    Wilson    (123 

Pa.    St.    19;     16    Atl.    Rep.    36), 

143 
Gird  V.  California  Oil  Co.    (60  Fed. 

Rep.  531),  55,  335 
Given    v.    State     (66    N.    E.    Rep. 

(Ind.)     750),    32,   42.   44.   45,    55, 

412.  417,  418 
Glading  v.  Frick    (88   Pa.  St.  460), 

369 
Glasgow  V.   Chartiers    ( 152   Pa.   St. 

48;    25    Atl.    Rep.    232,    affirming 

23  Pittsb.  L.  J.    (N.   S.)    146;   31 

W.    X.    C.    207),    107.    114,    115, 

121,  160,   188,  222,  264 
Glasgow  V.  Chartiers  Gas  Co.    (152 

Pa.  St.  48;   25  Atl.  Rep.  232,  af- 
firming 22  Pittsb.  L.  J.    (N.   S.) 

131),  265 
Glasgow    V.    Glasgow,    etc.,    R.    R. 

Co.   ([1895]   App.  Cas.  376;  64  L. 

J.    P.    C.    171;    72   L.   T.   809;    59 

J.  P.  788;    11  Rep.  226),  518 
Glasgow   V.    Griffith    (22    Pittsb.    L. 

J.     (N.    S.)     181),    91,    187,    222, 

265 
Glasgow   V.    Patrick,    etc.,    Co.     (22 

Gas  J.  54),  627 
Glasgow  Gas  Comrs.  v.  Solicitor   (3 

Court  of  Sessions  Rep.   (4  Lewis) 

857),    837 
Gleason  v.   Dalton    (28  X.  Y.  App. 

Div.  555;  51  X.  Y.  Supp.  337;  85 

X.  Y.   St.   Rep.   337,  reversing  23 

X.  Y.   Misc.    18;    50  X.  Y.   Supp. 

90),  450 
Glidden    v.    Sturples     (52    Pa.    St. 

40),   281 
Gloag    &    Miller's    Contract,    In    re 

(23   Ch.   Div.   320;    52   L.   J.   Ch. 

054;    48    L.    T.    629;     31    W.    R. 

601),  317 


Gloninger  v.  Franklin  Coal  Co.  (55 

Pa.   St.   9),    106 
Gloucester    Bank    v.    Rudry    Collier 

Co.    ([1895]    1   Ch.  029;    64  L.  J. 

Ch.  451;   72  L.  T.  375;  48  W.  R. 

486;    2  Manson  223;    12  R.   183). 

372,   377 
Goddard's  Appeal    (1   Walker    (Pa.) 

97,   231,   234 
Gold  V.   Peoria    (65   111.   App.   602), 

450,  457 
Golden  Reward  Mining  Co.  v.  Bux- 
ton  (97  Fed.  Rep.  413),  49 
Goller  V.  Fett   (30  Col.  481),  301 
Goodlander  Milling  Co.  v.  Standard 

Oil  Co.    (63  Fed.  Rep.  400;  24  U. 

S.  App.  7;  27  L.  R.  A.  583),  401 
Goodright  v.  Cator    (2  Dougl.  485), 

199 
Goodson  V.  Richardson   (L.  R.  9  Ch. 

221;   43  L.  J.   Ch.   790;    30  L.  T. 

(X.    S.)     142;     22    W.    R.    337), 

534,  537,  553 
Goodson  V.  Sunbury,  etc.    (72  L.  T. 

Rep.  251;  60  J.  P.  585),  788 
Goodtitle   v.    Aiken     (1    Burr    143), 

333 
Goodwin  v.  Gilbert    (9  Mass.   510), 

102 
Gordon  v.  Butler    (105   U.  S.   553), 

174 
Gordon    v.    George     (12    Ind.    408), 

231,  233 
Gosling   V.    Gaskell     ([1897]    A.    C. 

575).  608 
Gosport     V.     Pritchard      (156     Ind. 

400;    59    X.    E.    Rep.    1058),    446, 

447,  450,  457,  458,  464,  471.  472 
Goss   V.    Fire   Brick   Co.    (4    Super. 

Ct.    (Pa.)    167),  232,  234 
Goss   V.   Helbing    (77    Cal.    190;    19 

Pac.   Rep.   277),   355,   363 
Gould  V.  Glass   (19  Barb.  179),  329 
Graeff  v.  I^ix  (24  Pa.  Co.  Ct.  Rep. 

657),  558 
Graham    v.    Pierce     (19    Graft.    28; 

100  Am.  Dec.  658),   303 


Iviii 


TABLE   OF   CASES. 


(References  ara  to  ;ages.) 


Grand  Island  Gas  Co.  v.  West    (28 

Neb.   852;    45   N.   W.   Rep.   242), 

465,   475 
Grand  Rapids  v.  Grand  Rapids  Hy- 
draulic   Co.     (66    Mich.    606;    33 

N.  W.  Rep.  749),  536 
Grand   Rapids,    etc.,   Co.   v.   Ameri- 
can Fire  Ins.  Co.    (93  Mich.  396; 

53  N.  W.  Rep.  538),  808 
Grange  v.  Pately,  etc.,  Co.    (14  Gas 

J.   309),  651,  664 
Grant   v.    Davenport    (36    la.    396), 

450 
Graves  v.  Key  City  Gas  Co.   (83  la. 

714;   50  N.  W.  Rep.  283),  255 
Graves  v.  Key  City  Gas  Co.   (93  la. 

470;    61    N.    W.    Rep.    937),    577, 

609,  612 
Gray   v.    Boston   Gaslight    Co.    (114 

Mass.   149),  391 
Gray  v.  Pullen    (5  B.  &  S.  970;  34 

L.   J.    Q.   B.    265;    11    L.    T.   569; 

13  W.  R.  257),  754 
Greaney     v.     Holyoke     (174     Mass. 

437;    54    N.    E.    Rep.    880),    718, 

766 
Great   Central   Gas   Consumers'   Co. 

V.  Tallis    (3  Gas  J.  5),  587 
Great    Falls    W.    W.    Co.    v.    Great 

Northern   Ry.   Co.    (54   Pac.   Rep. 
•  (Mont.)    963),   389,    520 
Great    Western,    etc.,    Co.    v.    Haw- 
kins   (66  N.  E.  Rep.    (Ind.  App.) 

765),  389 
Green  v.  Ashland  Iron  Co.    (62  Pa. 

St.  97),  42 
Greenough's  Appeal    (9  Pa.  St.  18), 

278 
Greensburg  Fuel  Co.  v.  Irwin,  etc., 

Co.   (162  Pa.  St.  78;  29  Atl.  Rep. 

274),   64 
Greenslade    v.    Dower     (7    B.    &    C. 

635;    1    M.    &   Ry.    640;    6   L.    J. 
(O.  S.)    K.  B.  155),  .348 
Greenwald    v.    Ins.    Co.     (3    Phila. 

323),  803 
Greenway    v.    Adams    (12    Ves.    Jr. 

395),   246 


Gregg  V.  Roaring  Springs,  etc.,  Co. 

70  S.  W.  Rep.    (Mo.)   920),  297 
Gribben  v.  Atkinson   (64  Mich.  651; 

31  N.  W.  Rep.  570),  162,  839 
Gribbens     v.     Atkinson     (64    Mich. 

351;   31  N.  W.  Rep.  570),  839 
Griffin    v.    Fellows     (81 1/2     Pa.    St. 

114),  285,  286 
Griffin  v.  Goldsboro  Water  Co.    (122 

N.  C.  206;   30  S.  E.  Rep.  319;  41 

L.  R.  A.  240),  577,  579,  581,  597, 

599 
Griffiths  v.  City  of  London  Gas  Co. 

(16  Gas  J.  139),  731,  764 
Grimsley  v.  Hawkins    (46  Fed.  Rep. 

400),  703 
Grinstone,    Ex    parte     (Amb.    708), 

279 
Grommes    v.     St.    Paul    Trust    Co. 

(147  111.  634;  35  N.  E.  Rep.  820; 

37  Am.   St.   Rep.   248),   171,   241, 

245 
Gross   V.    Scott  Mfg.    Co.    (48    Fed. 

Rep.  35),   174 
Grove  v.  Hedges    (55  Pa.   St.  504), 

73,   77,  101 
Grover  v.  Howard   (31  Me.  546),  94 
Grubb  V.  Bayard    (2  Wall  Jr.  81). 

63,  82,   105 
Grubb   V.    Grubb    (74    Pa.    St.    25), 

296 
Grubb  V.   Grubb    (101    Pa.   St.    11), 

301 
Grubb  V.  Guilford    (4  Watts    (Pa.) 

223),   82 
Grubb's   Appeal    (66   Pa.    St.    117), 

296 
Grubb's   Appeal    (90   Pa.    St.   228), 

296 
Grummett    v.    Gingrass     (77    Mich. 

369;  43  N.  W.  Rep.  999),  320 
Grundy  v.  Janesville    (84  Wis.  574; 

54  N.  W.  Rep.  1085).  788 
Grymes  v.  Boweren    (6  Bing.  439), 

646 
Guffey  V.  Clever    (146  Pa.  St.  548; 

23  Atl.  Rep.  161),  90,  225,  228 


TABLE   OF   CASES. 


lix 


(References  are  to  pages.) 


Guffey    V.    Deeds    (9    Pa.    Co.    Rep. 

449),  106 
Guffey  V.  Hukill   (34  W.  Va.  49;  11 

S.  E.  Rep.  754;   8  L.  R.  A.  759), 

70,  145,  195,  199,  200 
Guffin    V.    Fellows     (81 1/2     Pa.    St. 

114),  285,  286 
Gunther  v.  Liverpool,  etc.,   Ins.  Co. 

(85    Fed.    Rep.    846;    134    N.    S. 

110;    10  Sup.  Ct.  Rep.  448),  795, 

799,    802 
Guthrie  v.  Jones    (108  Mass.    191), 

632,  638 

H 

Hacker  v.  London  Gaslight  Co.    (32 

Gas  J.   781),   624,   681,   762 
Hacker    v.    Philadelphia     (6    Phila. 

94),  570 
Haenssler  v.  Missouri  Iron  Co.   (110 

Mo.    188;    19    S.   W.   Rep.   75;    16 

L.  R.  A.  220),  298 
Hague    V.    Wheeler     (157    Pa.     St. 

324;    27   Atl.   Rep.   714;    22  L.  R. 

A.  141;  33  W.  X.  C.  83),  33,  44, 

48,   119 
Haight    V.    Conners    (Pa.    St.)     (24 

Atl.  Rep.  302),  94 
Hail  V.  Reed    (15  B.  Mon.  479;    11 

Mor.  Min.   Rep.   103),  32,  33,  37, 

42,   43 
Hale,  etc.,  Co.  v.  Storey  County    (1 

Nev.   105),   839 
Haley  v.   Dorchester,    etc.,   Ins.    Co. 

(12  Gray  545),  816 
Halford  v.   Hatch    (Doug.   187),  246 
Hall    V.    Insurance    Co.     (58    N.    Y. 

292;   17  Am.  Rep.  255),  798,  809 
Hall    V.    Nashville,    etc.,    Ry.     (13 

Wall.  367),  827 
Hall  V.  Vernon   (47  W.  Va.  295;  34 

S.  E.  Rep.  764;  49  L.  R.  A.  464), 

52,  300 
Hamilton    v.    Delhi,    etc.,    Co.    (118 

Cal.     148;     .50    Pac.    Rep.     378), 

355.    356 
Hamilton  v.  Elliott  (5  S.  &  R.  375), 

199 


Hamilton   v.    Pittock    (158    Pa.    St. 

457;    27    Atl.    Rep.     1079),    126, 

142 
Hamilton  v.  Hamilton  Gaslight  Co. 

(11    Ohio    Dec.    513),    461,    488, 

496,  508,  564 
Hamilton    Gaslight   &    Coke   Co.    v. 

Hamilton     (37     Fed.    Rep.     832), 

493 
Hamilton    Gaslight   &    Coke    Co.    v. 

Hamilton     (146    U.    S.    258;     13 

Sup.    Ct.    Rep.    90,    affirming    37 

Fed.  Rep.  832),  496,  558 
Hammond   v.    Hopkins    ( 143    U.    S. 

224),  92 
Hampton  v.  Cradley  Heath  Gas  Co. 

(14   Gas   J.   606),   713,   716,   717, 

733 
Hampton  v.  Oxford  Gas  Co.   (3  Gas 

J.  64).   590 
Hancock's     Est.,     In    re     7     Kulp. 

(Pa.)    36),  76,  272 
Handforth    v.    Jackson     ( 150    Mass. 

U'3;  22  N.  E.  Rep.  634),  648 
Hangen  v.  Albina,  etc.,  Co.   (21  Ore. 

411;   28  Pac.  Rep.  244;    14  L.   R. 

A.  424),  577,  579,  582,  585,  586 
Hankey  v.  Kramp   (12  Ohio  Cir.  Ct. 

Rep.  95;    5   Ohio  C.   D.  439),  160 
Hankey  v.  Philadelphia  Co.    (5  Pa. 

Super.  Ct.  148;  41  W.  N.  C.  27), 

392,  393 
Hann    v.    Weymouth,    etc.,    Co.    (18 

Gas  J.    186),  728,  763 
Hanover  Fire  Ins.   Co.  v.   Stoddard 

(52    Neb.    745;    73    N.    W.    Rep. 

291),  796 
Harbison    v.    Knoxville    Water    Co. 

53    S.    W.    Rep.     (Tenn.)     993), 

578.  594,  600 
Hardaker     v.     Idle     Dist.     Council 

([1896]    1  Q.  B.  335;  65  L.  J.  Q. 

B.  B.  (N.  S.)  363;  74  Law  T. 
Rep.  §9;  44  W'.  R.  323;  60  .J.  P. 
196),  ^8,  754 

Hardesty    v.    Richardson     (44    Md. 
617;   22  Am.  Rep.  57),  315 


Ix 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Hargrove  v.  King  (5  Ired.  Eq.  430), 

247 
Harkness  v.   Burton    (39    la.    101), 

80,  83 
Harlan    v.    Coal    Co.     (35    Pa.    St. 

287),   79 
Harlan  v.  Lehigh,  etc.,  Co.    (35  Pa. 

St.   287),  77,  79 
Harlan  v.  Logansport,  etc.,  Co.  ( 133 

Ind.    323;    32    N.    E.    Rep.    930), 

101,   102 
Harlem  Gaslight  Co.   v.   New  York 

(33  N.  Y.  309,  affirming  3  Robt. 

100),  446,  454,   455,  462 
Harlow  v.   Lake   Superior,   etc.,  Co. 

(36  Mich.   105),  285,   286 
Harness  v.  Eastern  Oil  Co.    (49  W. 

Va.    232;     38    S.    E.    Rep.    662), 

103,   121,  122,   128,   153,   218,  200 
Harrington  v.  Florence  Oil  Co.  (178 

Pa.    St.    444;    35   Atl.    Rep.    855), 

297,  301,  304,  307 
Harris  v.  Cobb   (49  W.  Va.  350;  38 

S.    E.    Rep.    559),    230,    260,   273, 

335 
Harris   v.   Heackman    (62   la.   411; 

17  N.  W.  Rep.  592),  171,  245 
Harris  v.  Lloyd    (11  Mont.  390;  28 

Pac.   Rep.   736),   309,  344 
Harris  v.  Ohio  Oil  Co.   (57  Ohio  St. 

629;     50    N.    E.    Rep.    1129;    57 

Ohio  St.  118;  48  N.  E.  Rep.  502), 

107,   114,  121,   122,  128,  129,  183, 

190,  200 
Harrisburg,    etc.,    Co.    v.    Goodman 

(129   Pa.    St.   206;    19    Atl.   Rep. 

844),  637 
Harrison,   Ex  parte    (13  Q.  B.  Div. 

753),  606 
Harrison  v.  Barrow   (63  L.  T.  834), 

225 
Harrison  v.  Vreeland    (38  N.  J.  L. 

300),  102 
Hart  V.  Plum   (14  Cal.  148),  641 
Hartford  v.  Hartford,  etc.,  Co.    (65 

Conn.    324;    32    Atl.    Rep.    925), 

454,   457 


Hartwell  v.  California  Fire  Ins.  Co. 

(84«Me.  524;   24  Atl.   Rep.   954), 

819 
Hartwell  v.  Cansman    (2  Stock  Eq. 

(N.  J'.)    128),  77 
Haskell  v.  Gallagher    (20  Ind.  App. 

224;   50  N.  E.  Rep.  485;   67  Am. 

St.  Rep.  250),  355,  356,  360 
Hastings  v.  Cutler    (24  N.  H.  481), 

104 
Hatcher  v.  Dunn    (102   la.  411;   71 

N.  W.   Rep.   343;   66  N.   VV.  Rep. 

905;  36  L.  R.  A.  689),  787 
Hatfield    v.    St.    John    Gaslight   Co. 

(32   N.   B.   100),   736 
Hatherton  v.   Bradbourne    (13   Sim. 

599;    13    L.    J.    Ch.    171;    7    Jur. 

1100),  272 
Hauk   V.    Standard   Oil   Co.    (38   N. 

Y.  App.  Div.  621 ;  56  N.  Y.  Supp. 

273),  783 
Hauck  V.   Tidewater   Pipe  Line   Co. 

(1.53    Pa.    St.    366;    26    Atl.    Rep. 

644;  .20  L.  R.  A.  642),  408,  662, 

664,   666 
Haven    v.    Emery    (33    N.    H.    66), 

630 
Haven   v.  Mehlgarten    (19   111.   90), 

308 
Hawesville  v.  Hawes  (6  Bush.  232), 

333 
Hawkins  v.  Pepper   (117  N.  C.  407; 

23   S.   E.   Rep.  434),   70,  83,   148, 

190,   199 
Hawkins    v.    Robinson     (37    J.    P. 

662),   543 
Hawkins    v.    Spokane,    etc.,    Co.     (2 

Idaho    970;    28    Pac.    Rep.    433), 

340,    345,    348 
Hawks    V.     Taylor     (70     111.     App. 

255),   108 
Hawtyne    v.    Bourne     (7    M.    &    W. 

595;   10  L.  J.   (N.  S.)   Exch.  224; 

5  Jur.  118),  348 
Hay    v.    Springfield     (64    111.    App. 

671),  450,  451 
Hayden  v.  Stoughton   (5  Pick.  528), 

185 


TABLE  OF  CASES. 


Ixi 


(References  are  to  pages.) 


Hay  ford    v.    Wentworth     (54     Atl. 

Rep.    (Me.)    940),  629 
Hays  V.  Doane    (11   N.  J.  Eq.  84), 

634,  638,  639 
Hays  V.  Gallon,  etc.,  Co.    (29  Ohio 

St.   330),   381 
Haywood   v.    Cope    (25    Beav.    140; 

27  L.  J.  Ch.  468;  4  Jur.    (N.  S.) 

227;    31   L.   T.    (O.   S.)    48;    6  W. 

R.   304),   313,  318 
Heal  V.  Niagara  Oil  Co.    (150   Ind. 

483;  50  N.  E.  Rep.  482),  283 
Healey  v.  Mutual,  etc.,  Co.   (133  111. 

556;  25  N.  E.  Rep.  52),  830 
Heap    V.    Barton     (12    C.    B.    274), 

646 
Heath  v.  Sauson   (2  B.  &  Ad.  291), 

340 
Hecksher  v.   Sheafer    (17   W.  X.   C. 

(Pa.)    323),  839 
Heeter    v.    Eckstein     (50    How.    Pr. 

445),  247 
Heffron     v.     Kittanning     Ins.     Co. 

(132    Pa.    St.    580;    20   Atl.    Rep. 

698),  803,  804 
Heh   V.   Consolidated  Gas    Co.    (201 

Pa.    St.    443;    50    Atl.    Rep.    994; 

88   Am.   St.  Rep.   819),   698,   717, 

723,  765 
Heil   V.    Strong    (44   Pa.    St.    264), 

286 
Heilbron  v.   Cuthbert    (96  Ga.  312; 

23  S.  E.  206),  561 

Heinouer    v.    Jones     (159    Pa.     St. 

228;   28  Atl.  Rep.  228),  216 
Heintz  v.  Shortt    (149  Pa.  St.  286; 

24  Atl.  Rep.  316).   167,  206 
Heiple    v.    East   Portland    (13    Ore. 

97).  512 
Helena  v.  Helena  W.   W.   Co.    (122 

Fed.  Rep.   1),  489,  492,  496 
Heller    v.     Dailey     (28     Ind.    App. 

555;   63  N.  E.  Rep.  490).  33,  67, 

79,    94,    106,    112,    169,    170,    172, 

226,  231,  232,  235,  237,  238,  239, 

242,  244,  245,  365 
Heman   v.   St.   Louis,   etc..   Co.    (75 

Mo.  App.  372),  531,  532 


Hemphill   v.  Giles    (06  N.   C.  512), 

366 
Hemstead  v.  Phoenix  Gaslight,  etc., 

Co.   (3  H.  &  C.  745;  11  Jur.  N.  S. 

626;    13   W.   R.   662;    34  L.  J.   C. 

P.  108;   14  Gas  J.  399),  755 
Henderson  v.  Allegheny  Heating  Co. 

(179    Pa.    St.    513;    39    W.   N.    C. 

485;   36  Atl.  Rep.  312),  712,  723, 

767 
Henderson  v.  Coal  &  Coke  Co.    ( 140 

U.  S.  25;    11   Sup.  Ct.  Rep.  691), 

176 
Henderson   v.   Ferrell    (183   Pa.   St. 

547;    41    W.   N.    C.   404;    38   Atl. 

Rep.  1018),  113,  208,  224 
Henderson  v.  New  Castle,  etc.,  Gas 

Co.   (37  Sol.  J.  403),  584,  709 
Henderson  Bridge  Co.  v.  Henderson 

City    (173  U.  S.  592),  431 
Hendrie  v.  Lea  Bridge,  etc.,  Co.   (21 

Gas  J.  949,  989),  651,  674 
Hendrix  v.  Hendrix   (65  Ind.  329), 

229 
Hendrix   v.   McBeth    (61    Ind.   473; 

28  Amer.  Rep.  680),  229,  287 
Hendy  v.   Dinkershoff    (57   Cal.  3), 

630 
Henkle   v.  Dillon    (15  Ore.  610;    17 

Pac.  Rep.  148),  630,  631 
Henne  v.   South   Penn.   Oil   Co.    (52 

W.   Va.   — ;    43   S.    E.   Rep.   147), 

103,  118,  132,  182,  201 
Henry  v.  Cleveland,  etc.,  R.  R.   Co. 

(67   Fed.  Rep.  426),  404,  407 
Henshaw  v.  Wells    (9  Humph.  508), 

367 
Heron    v.     Phoenix,    etc.,     Ins.    Co. 

(180   Pa.    St.   257;    40   W.   N.   C. 

55;  36  AtL  Rep.  740;  36  L.  R.  A. 

517),  807,  811 
Herrington  v.  \Yood    (6  Ohio  C.  Ct. 

Rep.  326;   3  Ohio  Cir.  Dec.  475), 

75^75.  85.  151,  160 
Hersey  v.  White    (9  T.  L.  R.  335), 

613 
Hess  V.  Pegg   ( 7  Xev.  23 ) ,  563 


Ixii 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Heuer    v.    Northwestern,    etc.,    Ins. 

Co.    (144  111.  393;   33  N.  E.  Rep. 

411),  805 
Heuer  v.   Winchester   Fire   Ins.   Co. 

(151   111.  331;   37  N.  E.  Rep.  873, 

affirming  45  111.  App.  239),  805 
Hewitt,  etc.,  Co.  v.  General  Electric 

Co.    (61   111.  App.  168),  641 
Hewitt,     etc.,     Co.     v.     Watertown, 

etc.,  Co.    (65  111.  App.    153),  640, 

644,  646 
Hewitt  Iron   Mining   Co.   v.    Dessau 

Co.     (129    Mich.    — ;     89    N.    W. 

Rep.    365;    St.    138;    9    Atl.    Rep. 

144),  162,  275 
Heysham    v.    Dettre     (89    Pa.     St. 

506).  632 
Hiberian  Gaslight  Co.  v.  Parry   (L. 

R.  4   Ind.  453),  606 
Hichens  v.  Congrove   (4  Russ.  562), 

312 
Hieronynius     v.      Brenville     Water 

Supply  Co.    (131  Ala.  447;  31  So. 

Rep.  31),  600,  605,  610.  613,  614 
Higgins  V.  Armstrong    ( 9  Colo.  38 ; 

10  Pac.  Rep.   232),  342,  344,  348 
Higgins  V.  California,  etc.,  Co.  (109 

Cal.  304;  41  Pac.  Rep.  1087),  84, 

103,  258 
Huggins    V.    Daley     (99    Fed.    Rep 

606;  48  L.  R.  A.  320),  250 
Higgins  V.   Hopkins    (3   Exch.   163 

18   L.   J.   Exch.    113;    6   Ry.   Cas 

75),  345 
Higgins    V.    San    Diego     (118    Cal 

524;    45   Pac.   Rep.   824;    50   Pac 

Rep.  670),  464,  573 
Higgins  V.  Samels    (2  J.  &  H.  460; 

7  L.  T.  240),  319 
Hill,  Ex  parte   (6  Ch.  Div.  63),  606 
Hill    V.    Gaslight    Co.     (13    Gas    J. 

877),  720 
Hill   V.   Joy    (149   Pa.    St.   243;    24 

Atl.  Rep.  293),  124 
Hill  V.   Schneider    (43   IST.  Y.   Supp. 

1;   13  X.  Y.  App.  Div.  299;   4  N. 

Y.  Ann.  Cas.  70),  775 


Hill   V.   Wallasey   L.   B.    ([1894]    1 

Ch.  133;  63  L.  J.  Ch.  1 ;  69  L.  T. 

641;    42    W.    R.    81 ;    7    Rep.    51), 

517 
Hilton's   Appeal    (116   Pa.   St.   351; 

9  Atl.  Rep.  342),  369 
Hilton  V.  Woods    (L.  R.  4  Eq.  432; 

36  L.  J.   Ch.   491;    16  L.  T.   736; 

15   W.   R.   1105),  49 
Hindson    v.    Markle     (171    Pa.    St. 

138;    33   Atl.   Rep.   74),    654,   658 
Hines  v.   Miller    (122   Cal.   517;    55 

Pac.   Rep.   401),    354 
Hingsley  v.  Hillside  Coal  Co.    (144 

Pa.  St.  613;  29  W.  N.  C.  368;  23 

Atl.  Rep.   253),  272 
Hipkins    v.    Birmingham,    etc.,    Co. 

(5  H.   &  N.   74;    6  H.  &  N.  250; 

9  Gas  J.  63;  778;  30  L.  J.  Exch. 

60;   9  W.  R.  168),  652 
Hoag    V.    Lake    Shore,    etc.,    R.    R. 

Co.   (85  Pa.  St.  293),  400 
Hobart    v.    Murray     (54    Mo.    App. 

249),  62,  76,  77 
Hobbs    V.    Guardian,    etc.,    Co.     (12 

Can.  Sup.  Ct.  631),  803,  805 
Hoch  V.  Bass    (133  Pa.  St.  328;    19 

Atl.  Rep.  360),   199,  217 
Hoddesdon  Gas  &  Coke  Co.   (6  C.  B. 

(N.    S.)     239;    5    Jur.     (N.    S.)  ; 

1013;  28  L.  J.  C.  P.  268;  7  W.  R. 

415;    8   Gas   J.   261),    576 
Hodgson  V.  Parkins   (84  Va.  700;  5 

S.  E.  Rep.   710),  62,   79,  81,   101, 

228 
Hodson   V.   Heuland    ([1896]    2   Ch. 

428;    65  L.  J.  Ch.  754;   74  L.  T. 

881;  44  W.  R.  684),  315 
Hoehle  v.  Allegheny  Heating  Co.    (5 

Pa.   Super.   Ct.   21),   577,   589 
Hoerdt     v.     Hahne      (91     111.     App. 

514),    171,   242.    245 
Hofer's  Appeal   (116  Pa.  St.  360;  9 

Atl.  Rep.  441),   94 
Hogan  V.  Fayette  Gas  Fuel  Co.    (21 

Pa.   Co.  Ct.   Rep.   503;    29   Pittsb. 

Leg.   J.    (N.   S.)    229),   501,   529, 

530 


TABLE  OF   CASES. 


Ixiii 


(References  are  to  pages.) 


Hogsett    V.    Ellis     (17    Mich.    351), 

367 
Hoin    V.     Lancaster     (13    Lane.    L. 

Rev.   131),   710,   722 
Holbrook  v.   Conner    (CO  Me.   578), 

174 
Holbrooke   v.    Harrington    (36    Pac. 

Rep.    (Cal.)    365),  308 
Holden  v.  Liverpool,  etc.,  Co.    (3  C. 

B.  1;   15  L.  J.  C.  P.  301;   10  Jur. 

883),  720,  745 
Holding  V.  Liverpool  Gas  Co.    (3  C. 

B.  1;   10  Jur.  883;   15  L.  J.  C.  P. 

301;     5     N.     Y.     Leg.     Obs.     77; 

Anthon    N.    P.    356,    note),    687, 

703,  708 
Holliday  v.  Nat.  Telephone  Co.    (68 

L.  J.   Q.   B.   1016;    81   L.  T.   252; 

47   W.   R.  658;    15  L.  T.  R.  483; 

[1899]  2  Q.  B.  392),  754 
Hollingsworth  V.  Fry   (4  Dall.  345), 

211 
Holly    V.    Boston    Gaslight    Co.     (8 

Gray  123;  69  Am.  Dec.  233),  681, 

686,  687,  697,  698,  707,  709,  710, 

720,  723,  742,  744,  749,  750,  751, 

756,    768 
Holly    Mfg.     Co.    V.     New    Chester 

Water    Co.    (48    Fed.    Rep.    879), 

364 
Holman's  Appeal    (24  Pa.  St.  174), 

294 
Holmes  v.  Bellingham   (7  C.  B.   (N. 

S.)    329).   333 
Holt    V.    Gaslight   &    Coke   Co.     (L. 

R.    7    Q.    B.    Div.    728;    41    L.   J. 

Q.  B.  351;  27  L.  T.   (N.  S.)   442), 

393 
Holyrod   v.   Marshall    (2   Giff.    382; 

2  DeG.  F.  &  J.  596;   3  L.  J.  Ch. 

655;    30   L.   J.    Ch.    385;    3   L.    J. 

Ch.     193),    046 
Honeyman     v.     Thomas      (25     Ore. 

539;   36   Pac.   Rep.  656),  644 
Hood    V.    Easton     (2    Giff.    692;    2 

Jur.    (N.    S.)    729;    27   L.    T.    (O. 

S.)    295;   4  W.  R.   575),  372,  376 


Hook  V.  Garfield  Coal  Co.    (112  la. 

210;    83    N.    W.    Rep.    963),    289, 

296 
Hooks   V.    Forst    (165   Pa.    St.    238; 

30  Atl.  Rep.  846),   164,   169,  308, 

309 
Hoosac    Mining,   etc.,    Co.   v.   Donat 

(10  Colo.  529;   16  Pac.  Rep.  157), 

268 
Hope's  Appeal    (29  W.  N.  C.    (Pa.) 

365;  3  Atl.  Rep.  23;  2  Cent.  Rep. 

43;  33  Pittsb.  L.  J.  (N.  S.)   270), 

62,  76,   77,  251,  272 
Hope   Mining   Co.,    In    re    ( 1    Savvy.. 

710),     356 
Hopkins  v.  Hudson    (107    Ind.    191; 

8  N.  E.  Rep.  81),  359 
Hopkins  v.   Grazebrook    (6  B.  &  C. 

31;    9   D.   &   R.    22;    5    L.   J.    (0. 

S.)    K.    B.   05),   320 
Hoppes  V.  Bale   (105  la.  648;  75  N. 

W.    Rep.    495),    360 
Horberg  v.  May    (153  Pa.   St.   216; 

25   Atl.   Rep.    750),    141 
Hornby   v.   Liverpool,   etc.,   Gas   Co. 

(47    J.    P.    231),    788 
Horrigan     v.     Nowell      (110     Mass. 

470),   786 
Hosack  V.  Crill   (53  Atl.  Rep.   (Pa.) 

640),    67,    76 
Hosie   V.    Gray    (71    Pa.    St.*   198), 

369 
Hot     Springs,     etc.,     Co.     v.     Hot 

Springs    (70  Ark.  300;   67   S.   W. 

Rep.  761),  421 
Houghton,    In    re     (20    Hun    395), 

788 
Houlgate  v.  Surrey  Consumers'  Gas 

Co.    (8  Gas  J.  261),  576,   600 
Hourigan     v.     Lowell      (110     Mass. 

470),    786 
Howell    V.    Millville    (60    N.    J.    L. 

95;    36    Atl.    Rep.    691),    563 
Ho.wland    v.    Coffin     (9    Pick.     52), 

2%3 
Hovelman  v.  Kansas  City  Horse  R. 

R.   Co.    (79  Mo.   632),  494 


Ixiv 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Hoyt   V.   Latham    (143    U.    S.    553; 

12  Sup.  Ct.  Rep.  568),  92 
Huber   v.   Meikel     (94   N.    W.   Rep. 

(Wis.)    354),  42 
Huddle,  In   re    (16   Fed.  Rep.   373), 

224,  226 
Huddersfield    v.    Ravensthorpe    TJi- 

ban    District    Council     ([1897]    2 

Ch.    121;    66   L.    J.    Ch.    581,    re- 
versing  [1897]    Ch.  652;   66  L.  J. 

Ch.    N.    S.    286;    76    L.    T.    Rep. 

377),  463 
Hudepohl    v.    Libert,    etc.,    Co.     (80 

Cal.    553;    22   Pac.   Rep.    339),  94 
HuflF  V.   Austin    (46   Ohio   St.    386; 

21  N.  E.  Rep.  864),   701 
Huff  V.  McCauley   (53  Pa.  St.  206), 

83 
Huff    V.    McDonald     (22    Ga.    131), 

296.    301 
Huff    V.    Nickerson     (27    Me.    106), 

102 
Huffman    v.    State     (21    Ind.    App. 

449;    52    N.    E.    Rep.    715),    552, 

553,   555 
Huggins    V.    Daley     (99    Fed.    Rep. 

606;    40    C.    C.    A.    12;    48   L.    R. 

A.  320),  68,  69,  84,  99,  107.  124, 

145,  146,   166,  168,  200,  202 
Hughes    V.    Bucknell     (8    C.    &    P. 

566),'   367 
Hughes    V.    Devlin     (23    Cal.    501), 

298 
Hughes    V.    Maiden,    etc.,    Co.     (168 

Mass.    397;   47   N.   E.   Rep.   125), 

791 
Hughes  V.   Momence    (163   111.   535; 

45    N.    E.    Rep.    300),    492,    494, 

512,   51-5,   565 
Hughes   V.   United  Pipe  Lines    (119 

N.  Y.  423;   23  N.  E.  Rep.   1042), 

32,  33,  42,  43,  293 
Hughes  V.  Williams    (12  Ves.  493), 

371,   372,   373,   376 
Hughes    V.    Williams     (7    Ch.    Div. 

192;   47  L.  J.  Ch.  152;   26  W.  R. 

348),  374 


Hukill   V.  Guffey    (37   W.  Va.  425; 

16  S.  E.  Rep.  544),  195,  219 
Hukill  V.  Myers    (36   W.   Va.   639; 

15  S.  E.  Rep.  157),  195,  201 
Hulett  V.  Pudsey  Gas  Co.    (28  Gas 

J.   663),    790 
Humble   v.    Langston     (7   M.   &   W. 

517),   244,   245 
Hummelstown    v.    Brunner    (17    Pa. 

Co.  Ct.  Rep.  140;  5  Pa.  Dist.  Rep. 

8),    561 
Humphreys    v.    McKissock    (140    U. 

S.    304;    11    Sup.    Ct.    Rep.    779), 

94 
Hunt    V.    Bay    State    Iron    Co.     (97 

Mass.   279),   631 
Hunt   V.    Lowell    Gaslight    Co.     (13 

Gas   J.   877;    1    Allen    343),    685, 

720,  723,  742,  743,   749,   757,   758 
Hunt    V.    Lowell    Gaslight    Co.     (8 

Allen    169     ;    85    Am.    Dec.    697; 

3  Allen  410),  709,  710,  711,  730, 

757,  758,  759 
Hunt's  Case    (37  L.  .J.  Ch.  278;    16 

W.    R.   472),    352 
Hunter    v.    Apollo    Oil    &    Gas    Co. 
(54    Atl.    Rep.    (Pa.)    274),    253, 

274 
Hunter  v.  Savage,  etc.,  Co.    (4  Nev. 

153),    361 
Hutchinson  v.   Boston   Gaslight  Co. 

(122  Mass.  219),  697,  702,  710 
Hutchison    v.     Commonwealth     (82 

Pa.   St.  472),   58 
Hutchinson  v.  Consolidated  Gas  Co. 
(4  N.  Y.  App.  Div.  161;  38  N.  Y. 

Supp.  929),  768 
Hutchinson  v.  Kay   (23  Beav.  413), 

634 
Hutchinson   v.   Kline    (199    Pa.    St. 

564;   49  Atl.  Rep.  312).  306 
Huxhan    v.    Llewellyn     (21    W.    R. 

570).   314 
Hyde  Park,  etc.,  Co.  v.  Porter   ( 167 

111.   276;    47   N.  E.   Rep.   206;    af- 

fii'ming   64    HI.    App.    152),    391, 

694,    755 


TABLE  OF   CASES. 


Ixv 


(References  are  to  pages.) 


Hynds  v.  Schenectady,  etc.,  Ins. 
Co.  (11  N.  Y.  554,  affirming  16 
Barb.  119),  807,  812 


lams  V.  Carnegie   Natural  Gas   Co. 

(194    Pa.    St.    72;    45    Atl.    Rep. 

54),    154,   276 
Ibach   V.   Huntington,  etc.,   Co.    (23 

Ind.    App.    281;     55    N.    E.    Rep. 

249),   090,   725 
Idaho  Gold  Mining  Co.  v.  Winchell 

(3  Idaho  — ;    59  Pac.  Rep.  533), 

354 
Her  V.  Ross    (63  Xeb.  — ;  90  X.  W. 

Rep.  869),  488 
Illinois,   etc.,   Ry.    Co.   v.    Ogle    (82 

111.  627),    49 

Illinois    Trust    &    Savings    Bank    v. 

Arkansas     City      (76     Fed.     Rep. 

271;  22  C.  C.  A.  171;  34  L.  R.  A. 

518),     453,    464,    489,    500,     502, 

509,   530,   538 
Illinois,    etc.,    Co.    v.    St.    Louis     (2 

Dill.   70),   488 
Imperial    Fire    Ins.    Co.    v.    Fargo 

(95  U.  S.  227),  806 
Imperial    Gaslight    &    Coke    Co.    v. 

London  Gaslight  &  Coke  Co.    (10 

Exch.  39;  26  Eng.  L.  &  Eq.  425; 

3   Gas  J.   483),   843 
Imperial    Gas    Co.    v.    Chauntler    (2 

Gas  J.   362),*  613 
Imperial  Gas  Co.  v.  Porter    (5  Gas 

J.   372,   403),   624 
Independent  Refiners'  Association  v. 

Western,  etc.,  R.  R.  Co.   (4  Inter. 

Rep.  162),  384 
Indiana,   etc..    Gas   Co.   v.    Anthony 

(26  Ind.  App.  307;  58  N.  E.  Rep. 

868),    .589,   604,   624 
Indiana,  etc.,  Oil  Co.  v.  Hinton   (64 

N.    E.     Rep.     (Ind.)     224),     109, 

112,  256 

Indiana,  etc.,  Co.  v.  Long  (27  Ind. 
App.  219;  59  N.  E.  Rep.  410), 
686,   688,   724,   725,   726,    727 


Indiana,     etc..     Gas     Co.     v.     New 

Hampshire,     etc.,     Co.      (23     Ind. 

App.    298;    53    N.    E.    Rep.    485), 

688,   725,   726,  826 
Indiana,  etc.,   R.  R.  Co.  v.   Hartley 

(67  111.  439),  553 
Indiana,  etc.,  Co.  v.  State   (158  Ind. 

516;   63  N.  E.  Rep.  220;  57  L.  R. 

A.  761),  576,  577,  621,  626 
Indiana   Natural   Gas  &  Oil   Co.   v. 

Jones   ( 14  Ind.  App.  55 ;  42  N.  E. 

Rep.     487;     12    Nat.    Corp.    Rep. 

60),  53,   391,  392,   393 
Indiana,    etc.,    Co.    v.    McMath    (26 

Ind.    App.    1.54;     57    N.    E.    Rep. 

593;  59  N.  E.  Rep.  287),  556 
Indiana    X'atural,    etc.,    Co.    v.    Mc- 
Math   (26    Ind.   App.    154;    57   X. 

E.  Rep.  593;  59  X.  E.  Rep.  287), 

695 
Indianapolis    v.    Croas     (7    Ind.    9, 

12),  512 
Indianapolis  v.  Consumers'  Gas  Co. 

(140    Ind.    107;    39    X.    E.    Rep. 

433;    27    L.    R.    A.    514;    48    Am. 

and     Eng.     Corp.     Cas.     151 ;     49 

Am.  St.  Rep.  183),  421,  423,  427, 

446.  544 
Indianapolis    v.     Indianapolis    Gas- 
light,   etc..    Co.     (66    Ind.    396), 

426.  427,  446.  447,  507 
Indianapolis     v.      Kingsbury      (101 

Ind.  200;   51  Am.  Rep.  749),  282 
Indianapolis     v.     Wann     ( 144     Ind. 

175;   42  X.  E.  Rep.  901),  469 
Indianapolis,     etc.,     R.     R.     Co.     v. 

Citizens'    Street   R.    R.    Co.    (127 

Ind.   369;   24  N.  E.  Rep.    1054;   8 

L.  R.  A.  539;  26  N.  E.  Rep.  893), 

478.    488 
Indianapolis,  etc..  Gas  Co.  v.  Pierce 

(25  Ind.  App.  116;  56  N.  E.  Rep. 

137),  229 
Indianapolis,    etc.,    Co.    v.    Spaugh 

( Ig  Ind.  App.  683 ;  46  N.  E.  Rep. 

691),  125,  126 
Indianapolis    Gas    Co.    v.    Indianap- 
olis   (82  Fed.  Rep.  245),  428 


Ixvi 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Indianapolis    Gas    Co.    v.    Shumack 

(23  Ind.  App.  87;   54  N.  E.  Rep. 

414),  735 
Indianapolis  Gas  Co.  v.  Teters    (15 

Ind.    App.    475;    44    N.    E.    Rep. 

549),    155,    IGO,    162 
Indianapolis    Natural    Gas    Co.    v. 

Kibbey    (135   Ind.   357;   35  N.  E. 

Rep.   392),   101,   102,   121,  326 
Indianapolis    Natural    Gas    Co.     v. 

Spaugh   (17  Ind.  App.  683;  46  N. 

E.  Rep.  691),  95 
Ingalls   V.    St.    Paul,   M.   &   M.   Ry. 

Co.     (39    Minn.    479;    40    N.    W. 

Rep.  524),  648 
Insurance    Co.    v.    Tweed     (7    Wall. 

44),   804 
Insurance  Co.  of  N.  A.  v.  Fidelity, 

etc.,    Co.     (125    Pa.    St.    523;    16 

Atl.   Rep.   791;    2  L.  R.  A.  586), 

827 
Iron   Duke   Mine   v.   Braasted    (112 

Mich.    79;    70   N.   W.    Rep.   414), 

278 
Irwin  V.  Covode    (24  Pa.   St.   163), 

287,   294 
Island  Coal  Co.  v.  Combs   (152  Ind. 

379;    53    N.    E.    Rep.    452),    146, 

151,   167,   185,   192,   199,  215,  218 
Ives    V.    Wilder     (114    la.    476;    87 

N.    W.    Rep.    408;    54    L.    R.    A. 

854),  785 


Jackson    v.    Caton     (5    Ves.    687), 

315 
Jackson    v.    Groat     (7    Cow.    285), 

247 
Jackson    v.    O'Hara     (183    Pa.     St. 

233;    38   Atl.  Rep.    624),   93,   237, 

265,    267 
Jackson  v.  Standard  Oil  Co.   (98  Ga. 

749;    26   S.  E.   Rep.   60).   780 
Jackson  Co.  Horse  Ry.  Co.  v.  Inter- 
state   Rapid    Transit    R.    R.    Co. 

(24    Fed.    Rep.    306),    480,    488, 

500 


Jacksonville,    etc.,    Co.    v.    Jackson- 
ville   (36   Fla.    229;    18   So.   Rep. 

667;   30  L.  R.  A.  540),  559,  562 
Jamaica    Pond,    etc.,    Co.    v.    Brook- 
line    (121    Mass.-   5),    542 
Jamestown,  etc.,  Co.  v.  Egbert   (152 

Pa.    St.    53;    25    Atl.    Rep.    151), 

262 
Jamieson  v.  Indiana  Nat.  Gas,  etc., 

Co.   (128  Ind.  555;  28  N.  E.  Rep. 

76;   12  L.  R.  A.  652;  34  Am.  and 

Eng.    Corp.    Cas.    1;    3    Inter    St. 

Com.    Rep.    613),    53,    383,    384, 

388,  412,  414,  415,  420,  426 
Janes  v.  Emery  Oil   Co.    ( 1   Penny. 

(Pa.)    242),    122 
Janeway     v.      Duluth      (65     Minn. 

292;    68    N.    W.    Rep.    243),    498, 

567 
Jarechi     v.      Philharmonic     Society 

(79    Pa.    St.    403;    21    Am.    Rep. 

78),  632 
Jarechi     v.     Philharmonic     Society 

Ohio  Cir.   Dec.  5;    14   Ohio  C.   C. 

400),    355 
Jashanosky  v.  Volrath   (59  Ohio  St. 

540;    53    N.   E.   Rep.   46;    69   Am. 

St.  Rep.  786),   226 
Jefferys  v.  Smith    ( 1  J.  &  W.  298), 

338,   372,   377 
Jegon  v.  Vivian    (L.  R.  6  Ch.  App. 

742;   40  L.  J.  Ch.  389;    19  W.  R. 

365),   48 
Jenkins   v.   Columbia,   etc..    Co.    (13 

Wash.    502;    43    Pac.    Rep.    328), 

577,  607 
Jennings  v.  Alexander    (1  Hilt.    (N. 

Y.)    154),   246 
Jennings  v.   Broughton    (5  DeG.  M. 

&  G.  126;    17  Beav.  234;  22  L.  J. 

Ch.    585;    17    Jur.    305;    1    W.   R. 

441),  319 
Jennings  Bros.  &  Co.  v.  Beale    (158 

Pa.    St.    283;    27    Atl.   Rep.    948  j, 

63,    105,    106 
Jersey    City,    etc.,    Co.    v.     Passaic 

(N.   J.   L.)     (52   Atl.    Rep.   242), 

538 


TABLE  OF   CASES. 


Ixvii 


(References  are  to  pages.) 


Jersey  City  Gas  Co.  v.  Dwight,   (29 

N.    J.    Eq.    242),    421,    480,    491, 

522,   534,   563,   575 
Job  V.  Potton    (L.  R.  20  Eq.  84;  44 

L.  J.  Ch.  262;   23  W.  R.  588;   32 

L.  T.  110),  297,  301 
Johnson    v.    Belmar    { 58  1^.    J.   'Eq. 

354;  44  Atl.  Rep.   166),  610 
Johnson  v.  Sherman    (15   Cal.  287; 

76  Am.  Dec.  481),  233 
Johnson  v.  Wiseman   (4  Met.   (Ky.) 

357;  83  Am.  Dec.  475),  634 
Johnston,  In    re    (137   Cal.    115;    69 

Pac.    Rep.    974),    491,    501,    514, 

518,  531,  533 
Johnston    v.     Cowan     (59    Pa.     St. 
•    275),  162 
Johnston    v.    People's    Natural    Gas 

Co.    (7    Atl.    Rep.     (Pa.)     167;    5 

Cent.    Rep.    564;    15    Morr.    Min. 

Rep.    556),    383,    388 
Johnston  v.  Price   (172  Pa.  St.  427; 

33   Atl.    Rep.    688;    37    W.    N.    C. 

387;    26    Pittsb.    L.    J.     (X.    S.) 

357),  304,   306 
Johnston  Iron  Co.  v.  Cambria  Iron 

Co.    (32  Pa.  St.  241),  80,   106 
Johnston,  etc.,  R.  R.  Co.  v.  Egbert 

(152    Pa.    St.    53;    25    Atl.    Rep. 

151),  131,   132,  187 
Johnston  v.   People's,   etc.,  Gas   Co. 

(5    Cent.    Rep.    (Pa.)    564),   491, 

501,   530 
Johnston    v.    Standard    Mining    Co. 
(148  U.  S.  360;   13  Sup.  Ct.  Rep. 

585),  92 
Johnston     v.     Toronto     Consumers' 

Gas   Co.    ([1898]   App.   Cas.   447; 

78  L.  T.  270;  67  L.  J.  P.  C.  33), 

587,   605 
Joliet    Gaslight    Co.    v.    Sutherland 
(68  111.  App.  230),  522.   527,  539 
Jonas  V.  Cincinnati    (18  Ohio  318), 

469 
Jones  V.  Barnes  (45  Mo.  App.  590), 

245 
Jones  V.  Carter   (15  M.  &  W.  718), 

199 


Jones  V.  Clark    (42  Cal.   180),  342, 

347,    348,   349,    351 
Jones    V.    Forest   Oil    Co.    (194    Pa. 

St.    379;    44   Atl.    Rep.    1074;    30 

Pittsb.  L.  J.   (N.  S.)   58;  48  L.  R. 

A.   748),  34,  44,   47 
Jones  V.  Howard   Ins.   Co.    (117   N. 

Y.    103;    22   N.    E.   Rep.    518;    10 

N.    Y.    St.    Rep.    120),    798,    799, 

801 
Jones    V.    Rochester    Gas,    etc.,    Co. 

(7  N.  Y.  App.  Div.  474;  39  N.  Y. 

Supp.   1110),  627 
Jones    V.    Rochester    Gas,    etc.,    Co. 

(7  N.  Y.  App.  Div.  465;  39  N.  Y. 

Supp.    1105,    affirmed    158    N.    Y. 

678;    52   N.    E.   Rep.    1124),    577, 

578,   582,   588,   594 
Jones   V.    Rochester,   etc.,    Co.     (168 

N.  Y.  65;  60  N.  E.  Rep.  1044,  re- 
versing   64    N.    Y.    Supp.    1138), 

588 
Jones  V.  Strong   (5  Kulp.    (Pa.)  7), 

278,  288,   291 
Jones  V.  Western,  etc.,  Gas  Co.   ( 146 

Pa.  St.  204;  23  Atl.  Rep.  386;  29 

W.  N.  C.   266),   183 
Jones  V.  Wood    (2  Ohio  Dec.  75;  9 

Ohio   Cir.  Rep.   560;    6   Ohio  Cir. 

Dec.   538,  reversing   1   Ohio  N.  P. 

155),  840 
Jordan  v.  Myers    (126  Cal.  565;   58 

Pac.  Rep.   1061),  354 
Jordeson  v.  Sutton,  etc.,  Co.    (67  L. 

J.  Ch.  666;    [1898]  2  Ch.  614;  79 

L.  T.  478 ;  47  W.  R.  222 ;  63  J.  P. 

137,  affirmed  68  L.  J.  457;   [1899] 

2   Ch.   217;    80   L.   T.   815;    63   J. 

P.  692),   576 
Judge  V.  Braswell   (13  Bush.  69;  26 

Am.   Rep.   185),  338.   348.  349 
Judson   V.    Giant   Powder   Co.    (107 

Cal.   549;    40  Pac.   Rep.    1020;   29 

L.  R.  A.  718),  703,  778,  779 
Ju^genson  v.  Diller    (114  Cal.  491; 

46  Pac.  Rep,  610),  353,  354 


Ixviii 


TABLE   OF   CASES. 


(References  are  to  pages.) 


K 


Kahn  v.  Central  Smelting  Co.    (102 

U.    S.    641),    340,    341 
Kahn  v.  Old  Telegraph  Mining   Co. 

(2   Utah    13),   296 
Kalamazoo   v.   Kalamazoo,   etc.,   Co. 

(124    Mich.    74;    82    N.    W.    Rep. 

811),  525,   531 
Kamphouse     v.     Gaffner      (73     111. 

453),  79,  82 
Keating,  etc.,  Co.  v.  Marshall,  etc., 

Co.    (74  Tex.  605;   12  So.  W.  Rep. 

489),  649 
Keeler  v.  Keeler   (31  N.  J.  Eq.  181, 

191),  634,   636 
Keeler   v.   Trueman    (15   Colo.   143; 

25  Pac.   Rep.  311),  78 
Keenan   v.    Dubuque,    etc.,    Ins.   Co. 

(13  la.  375),  825 
Keihl  V.  South  Bend   (76  Fed.  Rep. 

921;  44  U.  S.  App.  687;  22  C.  C. 

A.   618;    36   L.   R.   A.   228),   446, 

450,   451,  475 
Keir  v.  Peterson    (41   Pa.  St.  357), 

33,  43 
Keiser  v.  Mahony  Gas  Co.    (143  Pa. 

St.  276;  22  Atl.  Rep.  759),  666 
Kelly   V.    Donahoe    (2   Mete.    (Ky.) 

482),   333 
Kelley    v.    Ohio    Oil    Co.     (57    Ohio 

St.  317;  49  N.  E.  Rep.  399;  39  L. 

R.  A.  765;   63  Am.  St.  Rep.  721, 

affirming  6  Ohio  C.  Ct.  Dec.  470; 

9   Ohio   C.   C.   511;    34    Wkly.   L. 

Bull.  185;  40  Wkly  L.  Bull.  338; 

6  Ohio  Dec.   186),  32,  43,  44,   51, 

119 
Kelly    V.    Worcester,    etc.,    Ins.    Co. 

(97  Mass.  284;  5  Benn.  Fire  Ins. 

Co.   122),    802 
Kcmble    v.    Kemble    (44   N.    J.    Eq. 

454;    11  Atl.  Rep.  733),  298 
Kemble    Coal   &    Iron    Co.    v.    Scott 

(90  Pa.  St.  3,32),   162. 
Kennard    v.    Standard    Oil    Co.    (89 

Ky.  468;  12  S.  W.  Rep.  937;  7  L. 

R.  A.  451),  661,   662 


Kennedy  v.   Crawford    (138  Pa.   St. 

561;    27    W.    N.    C.    306;    21    Atl. 

Rep.    191),     155,     166,    168,    207, 

210,   216,    346 
Kenrick  v.  Smick   (T.  W.  &  S.  41), 

180 
Kenton  Ins.  Co.  v.  Downs    (90  Ky. 

236;   13  S.   W.  Rep.  882;    12  Ky. 

L.  Rep.  115),  810,  822 
Kenton    Gas,    etc.,    Co.    v.    Dorney 

(17  Ohio  C.  Ct.  Rep.  101;   9  Ohio 

Cir.  Dec.  604),  68,   191,  200,  289, 

293 
Kenton  Gas,  etc.,  Co.  v.  Orwick   (21 

Ohio   Cir.  Ct.  Rep.  274;    11   Ohio 

C.   D.   786),    128 
Kentucky  Heating  Co.  v.  Louisville' 

Gas   Co.    (63   S.   W.   Rep.    (Ky.) 

651;   23  Ky.  L.  Rep.  730),  529 
Keogh     V.     Pittston,     etc.,     Co.      (5 

Lack.  Leg.  N.  242),  515 
Kerns  v.  Tanner    (66  Pa.  St.   297), 

215,  216 
Kerlin,  etc.,  Co.  v.  Toledo   (20  Ohio 

C.  C.  Rep.  603;  8  Ohio  N.  P.  62), 

67,  76,   571 
Kerr  v.  Bellefontaine    (59  Ohio   St. 

446;   52  N.  E.  Rep.  1024),  571 
Kettening  Gas  Co.  v.  Leach   (24  Gas 

J.    503),    845 
Keyes   v.   Pittsburgh,   etc.,   Co.    (58 

Ohio  St.  246;   50  N.  E.  Rep.  911; 

41  L.  R.  A.  681),  280 
Keystone    Mining   Co.    v.    Gallagher 

(5  Colo.  23),  355,  356 
Kieble  v.  Philadelphia    (105  Pa.  St. 

41).  686,  707,  744.  749,  768 
Kiddle  v.   Brown    (20  Ala.   412;    56 

Am.   Dec.    202),   82 
Kier  v.   Peterson    (41   Pa.  St.  357), 

136.   277,    285,   287 
Kilbridge  v.   Carbon,  etc.,  Co.    (201 

Pac.  Rep.  5,52;  51  Atl.  Rep.  347), 

777 
Kile  V.   Giobner    (114   Pa.   St.   381; 

7  Atl.  Rep.  154),  638 


TABLE   OF   CASES. 


Ixix 


(References  arc  to  pages.) 


Kille  V.   Reading  Iron  Works    (141 

Pa.   St.   440;    21   Atl.   Rep.   666), 

319 
Kinimel  v.  Burfeind    (2  Daly  155), 

741 
Kincaid    v.    Indianapolis,    etc.,    Co. 

(124    Ind.    577;    24    N.    E.    Rep. 

1066;   8  L.  R.  A.  602),  549,  551, 

552 
Kincaid   v.   McGowan    (88   Ky.    91; 

4  S.  W.  Rep.  802),  77 
King    V.     Edwards     (32    111.    App. 

558),    190 
King  V  Jones   (3  Camp.  230),  514 
King   V.    Oxford,    etc..    Society    (51 

L.  T.  94),  661 
King  V.  Philadelphia   Co.    (154   Pa. 

St.   160;   26  Atl.   Rep.  308;   21   L. 

R.    A.     141;     41     Am.    and    Eng. 

Corp.  Cas.  221),  537 
Kings     County     Fire     Ins.     Co.     v. 

Swigert    (11    111.  App.  590),   800, 

825 
Kingsley  v.   Hillside,  etc.,  Co.    ( 144 

Pa.    St.    613;    23    Atl.   Rep.   250), 

62,    78,   323,   326 
Kingsley     v.    McFarland     (82     Me. 

231;    19  Atl.  Rep.  442),  648 
Kinnaird   v.    Standard   Oil    Co.    (89 

Ky.   468;    12   S.   W.   Rep.   937;    7 

L.  R.  A.  451).  651 
Kinnaman   v.   Pyle    (44    Ind.    275), 

281 
Kirby   v.   Delaware,   etc.,   R.   R.   Co. 

(20  N.  Y.  App.  Div.  473;    46  N. 

Y.  Supp.  777),  701 
Kuchli   V.   Minnesota,   etc.,   Co.    ( 58 

Minn.  418;  59  N.  W.  Rep.  1088), 

469 
Kirk   V.    Mattier    (140   Mo.    23;    41 

S.  W.  Rep.  252),  75,  140 
Kirchman  v.  Lapp   (19  N.  Y.  Supp. 

831).  632 
Kirkwood    v.     Merameo     Highlands 

Co.    (94  Mo.  App.  637;   68  S^W. 

Rep.  761),  488 
Kitchen  v.  Smith   (101  Pa.  St.  452), 

73,  74,  81,   136,    137 


Kleppner    v.    Lemon     ( 176    Pa.    St. 

502;  35  Atl.  Rep.  109;  29  Pittsb. 

L.  J.    (N.  S.)    21,  346;   38  W.  N. 

C.  388,  affirmed  198  Pa.  St.  430; 

48  Atl.  Rep.  483),  107,  113,   114, 

118,   121,  127,  128,  129,  148,  207, 

274 
Knarr   v.   Conaway    (42    Ind.    260), 

172 
Knight    V.    Indiana,    etc.,    Co.     (47 

Ind.    105),    73 
Knight      V.      Mfgs.      Natural      Gas 

Co.    (23  Atl.  Rep.    (Pa.)    164;   29 

W.   N.  C.  261),   108 
Knotts    V.    McGregor     (47    W.    Va. 

566;   35  S.  E.  Rep.  899),  107 
Knupp  V.  Bight    (186  Pa.  St.   181; 

40  Atl.  Rep.  414),  244 
Kock's    Appeal     (93    Pa.    St.    434), 

114 
Kock    V.    Maryland    Coal    Co.     (68 

Md.  125;   11  Atl.  Rep.  700),  48 
Koelsch    V.    Philadelphia    Co.     (152 

Pa.  St.  355;  25  Atl.  Rep.  522;   18 

L.    R.    A.    759;    34    Am.    St.    Rep. 

653).    632,    686,    687,    688,    697, 

707,  717,  731,  768 
Koen  V.   Bartlett    (41   W.  Va.   559; 

23   S.    E.   Rep.   664;    31   L.   R.   A. 

128),  230.  288,  289,  292,  294 
Kohler    Brick    Co.    v.    N.    W.    Ohio, 

etc.,    Gas    Co.    (11    Ohio   Cir.    Ct. 

319;  5  Ohio  Cir.  Dec.  379),  745 
Kohlmann    v.     Selvage     (34    N.    Y. 

App.    Div.    380;    54    N.    Y.    S^ipp. 

230).  802 
Kokomo,    etc..    Gas    Co.    v.    Albright 

(18  Ind.  App.  151;  47  N.  E.  Rep. 

682),  253,  590 
Kokomo    Natural    Gas    Co.    v.    Al- 
bright   (18   Ind.  App.   151;   47  N. 

E.   Rep.   682).   100,    107 
Koplan  V.  Boston  Gaslight  Co.   (177 

Mass.    15:    58    N.    E.    Rep.    183), 

692,  706,  714,  715,  732,  733,  756, 

757,  761 


Ixx 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Kosten  v.   Interstate,  etc.,   Co.    (99 

Wis.  73;   74  N.  W.  Rep.  534;   40 

L.  R.  A.  651),  830 
Kruger   v.    Western,    etc.,    Ins.    Co. 

(72   Cal.   91;    13  Pac.   Rep.   156), 

822 
Krueger  v.  Wisconsin  Tel.  Co.    (106 

Wis.    96;    81    N.    W.    Rep.    1041; 

50  L.  R.  A.  298),  549 
Kreutz    v.    McKnight    (53    Pa.    St. 

319),    190,   220 
Krzywoszynski  v.   Consolidated  Gas 

Co.    (4   N.   Y.   App.   Div.   161;    38 

N.  Y.  Supp.  929),  690,  768 
Kunkle    v.    People's    Gas    Co.     (165 

Pa.  St.  133;  30  Atl.  Rep.  719;  33 

L.   R.   A.   847),    101,   283 
Kyffin  V.    East   London   W.   W.   Co. 

(66  Gas  J.  243),  588,  600 


La     Campagine     pour     L'Eclairage 

au  Gas  v.  La  Campagine,  etc.  (25 

Can.   S.   C.   168),  492 
Lackland   v.   North.  Mo.   R.   R.   Co. 

(31   Mo.   180),  563 
Lacustrine,  etc.,  Co.  v.  Lake  Guano, 

etc.,  Co.    (82  N.  Y.  476),  77 
Ladd    V.    Boston    (170    Mass.    332; 

49  N.   E.   Rep.  627;   40  L.  R.  A. 

171),  618,  633 
Ladd   V.   Jones    (61   111.   App.    584), 

557 
Ladley    v.    Creighton     (70    Pa.    St. 

490),  369 
La  Force  v.  Williams,  etc.,  Ins.  Co. 

(43    Mo.    App.    518),    796,    808, 

822 
Lake  Charles  Ice,  etc.,  Co.  v.  Lake 

Charles    (106  La.  65;  30  So.  Rep. 

289).  447,  457 
Lake    Erie,    etc.,    Co.    v.    Patterson 

(184   Pa.    St.    364;    39    Atl.    Rep. 

68),  169 
Lake  Erie,  etc.,   R.  R.   Co.  v.  Lew- 
der   (7   Ind.  App.   537;   34  N.  E. 

Rep.  447,   747),  400 


Lake  Superior  Ship  Canal,  etc.,  Co. 

V.  McCann    (86  Mich.  106;  48  N. 

W.  Rep.  692),  639,  641 
Lamar    Water,    etc.,    Co.    v.    Lamar 

(140    Mo.    145;    39    S.    W.    Rep. 

768),  450,  474 
Lambie  v.  Sloss,  etc.,  Co.    (118  Ala. 

427;    24   So.   Rep.    108),   62 
Lancaster    Gas    Co.,    In    re     (5    Pa. 

Dist.  Rep.  244),  481,  483 
Lancaster   v.   DeTrafford    (31    L.   J. 

Ch.   554;    7   L.   T.  40;    10   W.   R. 

474;  8  Jur.    (N.  S.)   873),  313 
Lancaster  Fire  Ins.  Co.  v.  Lenheim 

(89    Pa.    St.    497;    33    Am.    Rep. 

778),  795 
Lancaster   Gas  &   Fuel   Co.  v.  Lan- 
caster  Gas   Co.    (17    Pa.   Co.    Ct. 

Rep.  453),  480,  483 
Lancaster    Hotel    Co.    v.    Lancaster 

(7  Pa.  Super.  Ct.   159;  42  W.  N. 

C.    164),    — . 
Landell   v.   Hamilton    (175   Pa.    St. 

327;  34  Atl.  Rep.  663),  108 
Lane  v.  Gordon   (18  N.  Y.  App.  Div. 

438;  46  N.  Y.  Supp.  57),  208,  216 
Langabough   v.   Anderson    (22   Ohio 

Cir.  Ct.  Rep.   178;   12  Ohio  C.  D. 

341),   777 
Langdon  v.  New  York,  etc.,  Ins.  Co. 

(1  Hall   (N.  Y.)  226),  812,  815 
Langmade  v.  Weaver    (65  O.  S.  17; 

60  N.  E.  Rep.  992),  100 
Langston  v.  Bates    (84  111.  524;  25 

Am.  Rep.   466),  315 
Lanigan  v.  New  York,  etc.,  Co.   (71 

N.   Y.   29),   704,   747.   750 
Lanman  v.  Young  (31  Pa.  St.  306), 

176 
Lannen  v.  Albany  Gaslight  Co.    (46 

Barb.   264;    44    N.   Y.   459),   708, 

728,  732,  751,  764 
Lanning  v.   Osborne    (76   Fed.   Rep. 

319,   affirmed  Osborne  v.   San  Di- 
ego,  etc.,    Co.,    178   U.    S.   22;    20 

Sup.  Ct.  Rep.  860),  430,  433 
Lanning  v.   Osborne    (82   Fed.   Rep. 

575),  431 


TABLE  OF  CASES. 


Ixxi 


(References  are  lo  pages.) 


Lattimore    v.    Harsen     ( 14    Johns. 

330),  274 
Lawrence    v.    Hennessy     (165     Mo. 

659;  65  S.  W.  Rep.  717),  508 
Lawrence   v.   Kemp    (1    Duer   363), 

639,   645 
Lawrence    v.    Methuen     (166    Mass. 

206;   44  N.  E.  Rep.  247),  463 
Lawrence  v.  Robinson  (4  Colo.  567), 

338,  339,  346 
Lawson   v.    Kirchener    (50   W.    Va. 

344;  40  S.  E.  Rep.  344),  76,  270 
Lawton  v.  Lawton  (3  Atk.  13),  646 
Lawton  v.   Salmon    (1   H.  B.  259), 

646 
Laycock   v.    Baton    Rouge    (35    La. 

Ann.  475),  468 
Laythoarp  v.  Bryant  (2  Bing.  N.  C. 

735;    5  L.  J.  C.  P.  217;   3  Scott 

238;  2  Hodges  25),  314 
Lazarus'  Est.,  In  re  ( 145  Pa.  St.  1 ; 

23  Atl.  Rep.  372),  76,  78,  272 
Leadville    Water    Co.    v.    Leadville 

(22  Colo.  297;  45  Pac.  Rep.  362), 

433,  469,   599 
Lean   v.    Boston     (106    Mass.   450), 

547 
Leatherman  v.  Oliver    (151   Pa.  St. 

646;  25  Atl.  Rep.  309),  266,  267, 

183,  184 
Lebanon  Gas  Co.   v.   Lebanon   Fuel, 

etc.,  Co.  (5  Pa.  Dist.  Rep.  529;  18 

Pa.    Co.    Ct.   Rep.   223).   52.   501, 

530 
Lebanon,  etc..  Co.  v.  Leap   (139  Ind. 

443;  39  N.  E.  Rep.  57;  29  L.  R. 

A.  342),  555,  556,   693,  695,  730, 

788 
Le    Claire    v.     Davenport     (13    la. 

210),  488 
Lee  V.   Baumgardner    (86  Va.   315; 

10   S.   E.   Rep.  3),   63.  78 
Lee     V.     Roundwood     Colliery     Co. 

([1897]    1   Ch.  373;   66  L.  J.  Ch. 

186;  75  L.  T.  641;  45  W.^.  324), 

227 
Lee    V.    Troy,    etc.,    Co.     (98    N.    Y. 

115),  721,  742,  749,  768 


Lee   V.    Vacuum    Oil    Co.    (54   Hun 

156;  7  N.  Y.  Sup.  426),  408,  666, 

701,  730 
Le   Fevre  v.   Le   Fevre    (4   S.  &  R. 

241),  82 
Leftwich  v.   Neal    (7   W.   Va.   569), 

281 
Leggett  V.  ^Etna  Ins.  Co.    (10  Rich. 

L.    202),    812,    814 
Lehigh,  etc.,  Co.  v.  Wight   (177  Pa. 

St.  387;  35  Atl.  Rep.  219),  273 
Lehigh,  etc.,  Co.  v.  Wilkesbarre,  etc., 

Co.    (8  Kulp.    (Pa.)    540),  273 
Lehigh  Coal  Co.  v.  Wright  (7  Kulp. 

(Pa.)   434;   15  Pa.  Ct.  Rep.  433), 

76 
Lehigh  Zinc  and  Iron  Co.  v.  Bam- 

ford     (150    U.    S.    665;     14    Sup. 

Ct.    Rep.    219,    affirming   33    Fed. 

Rep.  677),  271 
Lehigh  Valley  Coal  Co.  v.  Jones  (86 

Pa.   St.   432),   735,   751 
Lemfers  v.  Henke  (73  111.  405),  287, 

298 
Lennox   v.    Vandalia    Coal    Co.    (66 

Mo.  App.   560;    158   Mo.  473;    59 

S.  W.  Rep.  242),  267 
Leport  V.   Mining  Co.    (3   N.   J.  L. 

Jr.  280),  42,  370,  371 
LeRoy,  In  re    (23   N.  Y.  Misc.   53; 

50  N.  Y.  Supp.  611),  567 
Lester  v.  Hardesty  ( 29  Md.  50 ) ,  365 
Lester   v.    Lester    (28    Gratt.    737), 

315 
Letherman   v.    Oliver    (151    Pa.    St. 

646;    31    W.    N.    C.    205;    25   Atl. 

Rep.  309),  183,  184,  266.  267 
Levering  v.  Langley   (8  Minn.    (Gil. 

82)    107),  171.  242.  245 
Levis  Water  Co.,  In  re    (11  Pa.  Ct. 

Rep.   178).  463.  483 
Levis  V.  Newton  ( 75  Fed.  Rep.  884 ) , 

427 
Levy  V.   Water  Works  Co.    (38  La. 

Ann.  29),  612,  619 
Lewis  V.  Boston  Gaslight  Co.    (1G5 

Mass.   411;   43  N.  E.  Rep.   178), 

714,  717 


Ixxii 


TABLE  OF  CASES. 


(References  are  to  pages.) 


Lewis  V.  Brooks    (8  Up.  Can.  Q.  B. 

576),    171,   242,   245 
Lewisville  Natural  Gas  Co.  v.  State 

(135  Ind.  49;  34  N.  E.  Rep.  702; 

21  L.  R.  A.  734;  43  Am.  &  Eng. 

Corp.  Cas.  483;  [overruling  Rushf- 

ville    V.    Rushville    Natural    Gas 

Co.,   132  Ind.  575;  28  N.  E.  Rep. 

853;    38   Am.   &  Eng.   Corp.   Cas. 

276;   15  L.  R.  A.  321]),  421 
Lewey  v.  H.  C.  Frick  Co.    (166  Pa. 

St.  536;   31  Atl.  Rep.  261;   28  L. 

R.  A.   283),   327 
Lietch  V.  Atlantic,  etc.,  Ins.  Co.   (66 

N.  Y.  100),  809 
Liggett  V.  Shira    (159  Pa.  St.  350; 

33   W.   N.   C.    553;    25   Atl.   Rep. 

218;  28  Atl.  Rep.  218),  183,   187 
Light   Co.   V.   Gill    (14   Pa.   Co.   Ct. 

Rep.  6),  363,   635 
Light  and  Fuel  Co.,  In  re    (17  Pa. 

Co.    Ct.    Rep.    113;    4    Pa.    Dist. 

Rep.   244),  480,  483 
Light  and  Heat  Co.  v.  Jackson    (73 

Miss.  598;  19  So.  Rep.  771),  452, 

460,  508 
Lillibridge  v.  Lackawanna  Coal  Co. 

(143   Pa.    St.   293;    22    Atl.   Rep. 

1035),  76,  77,  329 
Lima  Gas  Co.  v.  Lima   (4  Ohio  Cir. 

Ct.   Rep.    22 ;    22   Wkly.   L.   Bull. 

272;  2  Ohio  Cir.  Dec.  396),  530 
Linden  Steel  Co.  v.  Imperial  Refin- 
ing Co.    (138  Pa.  St.  10;  20  Atl. 

Rep.   867,  869),  364 
Lindsay  v.  Bridgewater  Gas  Co.   (24 

Pittsb.  L.  J.   (N.  S.)   276;   14  Pa. 

Co.  Ct.  Rep.  181),  826 
Line  v.   Stephenson    (5  Bing.  N.  C. 
■       183;   7   L.   J.  C.  P.  263;   7   Scott 

69;    1  Arn.  385),  268 
Lingeman   v.    Shirk    (15   Ind.   App. 

432;   43  N.  E.  Rep.  33),  95 
Linn  v.  Chambersburg   ( 160  Pa.  St. 

511;  28  Atl.  Rep.  842).  558 
Lithgow  V.   Shook    (39   Ohio   Wkly. 

L.  Bull.  39),  94 


Little  Valerie,  etc.,  Co.  v.  IngersoU 

(14  Colo.  App.  240;  59  Pac.  Rep. 

970),   359 
Littlewood  v.  Equitable  Gas  Co.    (8 

Gas  J.   541),   601" 
Littman  v.  New  York  City    (36  N. 

Y.  App.  Div.  189;  55  N.  Y.  Supp. 

383,   affirmed   159   N.   Y.   559;    54 

N.  E.  Rep.  1093),  698,  722,  723 
Liverpool,  etc.,  Ins.  Co.  v.  Gunther 

(116  U.  S.  113;  34  Fed.  Rep.  501; 

6   Sup.   Ct.   Rep.   306),   799,   802, 

813 
Livingston    v.    Rawyards     (5    App. 

Cas.  25;  42  L.  T.  334;   28  W.  R. 

357),  49 
Llynvi  Coal  Co.  v.  Brogden    (L.  R. 

11   Eq.   181;   40  L.  J.  Ch.   46;   24 

L.  T.  612),  49 
Lloyd  V.  Newell   ([1895]  2  Ch.  744; 

64  L.  J.   Ch.   744;    73  L.   T.   154; 

44  W.  R.  43),  316 
Lloyd   V.    Washington   Gaslight   Co. 

(1  Mackey  331),  608 
Loan   V.    Boston     (106   Mass.    450), 

787 
Lockhart  v.  Rollins    (2   Idaho  503; 

21  Pac.  Rep.  413),  224 
Loeber  v.  Roberts    ( 17  N.  Y.  Supp. 

378),  701 
Logan  V.  Payne  (43  la.  524;  22  Am. 

Rep.  261),  488 
Logan   V.   Washington   Co.    (29   Pa. 

St.  373),  77,  839 
Logan    Natural    Gas,     etc.,    Co.    v. 

Chillicothe    (65  Ohio  St.   186;   62 

N.   E.   Rep.    122),   425,   428,   434, 

452 
Logansport  v.  Dikeman  (116  Ind. 

15;  17  N.  E.  Rep.  587),  457 
Logansport,  etc..  Gas  Co.  v.  Peru 

(89  Fed.  Rep.  185),  431,  432, 

433.  499 
London,    etc..    Ins.    Co.    v.    Fischer 

(92   Fed.    Rep.   500,   affirming   83 

Fed.  Rep.  807),  814,  815,   824 
London    v.    Mitford     (14    Ves.    58), 

314 


TABLE   OF   CASES. 


Ixxiii 


(References  are  to  pages.) 


London,  etc.,  R.  R.  Co.  v.  Truman 

(11  App.  Cas.  45;  55  L.  J.  Cli. 

354 ;  54  L.  T.  250 ;  .34  W.  R.  657 ; 

50  J.  P.   388),  671 
London  Gaslight  Co.  v.  Nicholls   (2 

C.  &  P.  365).  605 
London   Gaslight   Co.   v.    Vestry   of 

Chelsea   (8  C.  B.    (N.  S.)    215;  9 

Gas  J.  292),  471,  606 
Long  V.  Duluth    (49   Minn.  280;  51 

N.  W.  Rep.  913),  498,  508 
Long  V.  Miller  (4  C.  P.  Div.  450;  48 

L.  J.  C.  P.  596;  41  L.  T.  306;   27 

W.  R.   720),  314 
Long  V.  Wade    (70  Me.  358),  .366 
Long   Island   Water   Supply   Co.    v. 

Brooklyn   (166  U.  S.  685;  17  Sup. 

Ct.  Rep.  718;  28  Chicago  L.  News 

313,  affirming  143  N.  Y.  596;   38 

N.  E.  Rep.  983),  491,  492,  565 
Los    Angeles    v.    Los    Angeles    City 

Water    Co.     (177    U.    S.    558;    20 

Sup.  Ct.  Rep.  736;  124  Cal.  377), 

425,   428,  429,  432,  459,  489,  527, 

564 
Losee  v.  Buchanan   (51  N.  Y.  476), 

701 
Louisiana   State  Board  v.  Standard 

Oil  Co.   (107  La.  Ann.  — ;   31  So. 

Rep.    1015),   418 
Louisville   v.    Louisville    Water   Co. 

(105    Ky.    754;    49    S.    W.    Rep. 

766).  516 
Louisville   v.    Wible    (84   Ky.    290; 

1  S.  W.  Rep.  605),  488 
Louisville  Gas  Co.  v.   Citizens'  Gas 

Co.    (115   U.    S.   683;    6   Sup.   Ct. 

Rep.   265;    10  Am.  &  Eng.   Corp. 

Cas.  671  [reversing  81  Ky.  263;   1 

Am.  &  Eng.  Corp.  Cas.  156] ) ,  420, 

422,    426.    494,    .538 
Louisville  Gas  Co.  v.  Dulaney    (100 

Ky  405;    38   S.  W.   Rep.   703;    36 

L.  R.  A.  125;  6  Am.  &  Eng.  Corp. 

Cas.    (N.  S.)   241),  431,  ^8,  594, 

618,  625 
Louisville    Gas    Co.    v.    Gutenkuntz 

(82  Ky.  432),  685,  732,  740 


Lowenstein   v.    Fidelity  &   Casualty 

(88    Fed.    Rep.    474,    affirmed    97 

Fed.  Rep.  17),  830 
Lowther  v.  Cavendish   (1  Eden.  99), 

646 
Lowther  Oil  Co.  v.  Guflfey  (43  S.  E. 

Rep.    (W.  Va.)    101),  71 
Lowther  Oil  Co.  v.  Miller-Sibley  Oil 

Co.     (44    S.    E.    Rep.     (W.    Va.) 

433),  34,  42,  49,  70,  71,  151,  160, 

168,  176 
Loy  v.  Madison,  etc..  Gas  Co.    ( 156 

Ind.  332;  58  N.  E.  Rep.  844),  256 
Luce    V.    Dorchester,    etc.,    Ins.    Co. 

(105  Mass.  297),  809 
Lulay  V.  Barnes    (172  Pa.  St.  331; 

34    Atl.    Rep.    53;    37    W.    N.    C. 

409),    321 
Lumsden's  Case    (L.  R.  4  Ch.  App. 

31;    17  W.  R.  65),  352 
Lunsford  v.  La  Motte  Lead  Co.   (54 

Mo.  426 ) ,  83 
Lushington     v.     Sewell      (1     Simm. 

435),  646 
Luzerne   Water   Co.   v.   Toby   Creek 

Water   Co.    (148   Pa.  St.   568;   24 

Atl.  Rep.  117),  482 
Lyddal    v.    Clavering     (Amb.    371), 

279 
Lykens  Valley  Coal  Co.  v.  Dock   (62 

Pa.   St.   232),  42,   226 
Lyman   v.   Arnold    (5   Mason    195), 

333 
Lyman  v.  Schwartz    ( 13  Colo.   App. 

318;  57  Pac.  Rep.  735),  345 
Lynch  v.  Lynch  (6  Irish  L.  R.  131), 

110,   171.   242 
Lynch    v.    Seymour     (15    Can.    Sup. 

Ct.  Rep.  .341).  81 
Lynch    v.    Versailles    Fuel   Gas    Co. 

(165    Pa.    St.    518;    35   W.    N.   C. 

5.58;   30  Atl.  Rep.  984).  193,  215, 

219,  271 
Lynde    v.    Hough     (27    Barb.    415), 

247 
Lynn's  Appeal    (31  Pa.  St.  44),  287 
Lyon  V.   Grorley    (53   Pa.  St.   261), 

42 


Ixxiv 


TABLE  OF  CASES. 


(References  are  to  pages.) 


Lyon  V.  Reed  (13  M.  &  W.  285;  2 
Piatt  Leases  503),  110,  111,  171, 
242 

M 

Macbride  v.  Weekes   (22  Beav.  533; 

2    Jur.     (N.    S.)     918;    28    L.    T. 

(0.  S.)    135),  319 
Mackin    v.    Portland    Gas    Co.     (38 

Ore.    120;    61    Pac.    Rep.    1.34;    62 

Pae.  Rep.  20;   49  L.   R.  A.  596), 

577,  607,  609 
Madison    v.    Morristown,    etc.,    Co. 

(52  Atl.  Rep.    (N.  J.  Ch.)    1.58), 

502,  515,  516 
Maher  v.  Shull   (11  Colo.  App.  322; 

52  Pae.  Rep.  1115),  354 
Maine  v.  Grand  Trunk  Ry.   (142  U. 

S.    217;    12    Sup.    Ct.    Rep.    121, 

163),  837 
Maitland  v.   C.   L.  &  R.  R.   Co.    (3 

Ohio  Leg.  News  289),  758 
Malcomson    v.    Wappoo    Mills     (85 

Fed.  Rep.  907),  75 
Malone  v.   Big   Flat,   etc.,   Co.    (76 

Cal.  578;  18  Pac.  Rep.  772),  355, 

357,  362,  363 
Malone  v.  Lancaster,  etc.,  Co.    (182 

Pa.  St.  309;  40  W.  N.  C.  434;   14 

Lane.  L.  Rep.  321;   15  Nat.  Corp. 

Rep.  98;   37  Atl.  Rep.  932),  501, 

845 
Malott  V.  Price    (109  Ind.  22;  9  N. 

E.  Rep.  718),  630 
Manganese  Co.  v.  Trotter   (29  N.  J. 

Eq.  561),  105 
Manhattan   Gaslight   Co.   v.   Barker 

(7  Robt.    (N.  Y.)    523),  549,   674 
Manhattan  Gaslight  Co.  v.  Ely    (39 

Barb.   174),  605 
Manhattan  Gas  Co.  v.  Flamme    (12 

N.  Y.  Wkly.  Dig.  245),  623 
Manufacturers'   Gas  and  Oil   Co.  v. 

Indiana,  etc.,  Co.    (156  Ind.  679; 

.59  N.  E.  Rep.  169),  41^. 
Manhattan    Trust    Co.     v.    Dayton 

Natural    Gas    Co.     (55   Fed.   Rep. 

181),  442,  475 


Manhattan  Trust  Co.  v.  Dayton   (59 

Fed.  Rep.  327;  8  C.  C.  A.  140;  16 

U.   S.   App.   588),   426,   442,   453, 

475,  508 
Manly  v.  Howlett  (55  Cal.  94),  315 
Manning  v.   Frazier    (96   111.    279), 

76,  79,  272 
Mansfield    v.    Blackburne     (3    Scott 

(N.  S.)   820;  6  Bing.  N.  C.  427), 

647 
Manufacturers',  etc.,  Co.  v.  Douglass 

(130   Pa.    St.    283;    18   Atl.    Rep. 

630),   101 
Manufacturers'   Gas   and  Oil  Co.  v. 

Indiana,  etc.,  Co.    (155  Ind.  566; 

58   N.   E.   Rep.   851),   33,   35,   44, 

45,   47,    383,    384,    386,    388,   392, 

393,  414 
Manfacturers'    Gas    and    Oil    Co.   v. 

Indiana,  etc.,  Co.    (156  Ind.  679; 

60  N.  E.  Rep.  1080),  47,  385,  388 
Manville  v.  Parks    (7   Colo.    128;   2 

Pac.  Rep.  212),  340,  344,  348 
Maple  V.  John    (42  W.   Va.   30;    24 

S.  E.  Rep.  608;  32  L.  R.  A.  800), 

119,    120 
Maril   v.   Connecticut   Fire   Ins.   Co. 

(95  Ga.  604;   23  S.  E.  Rep.  463; 

30  L.  R.  A.  835),  809,   810,  812, 

816,  817 
Mark  v.  National  Fire  Ins.  Co.   (24 

Hun  565,  affirmed  91  N.  Y.  663), 

53,  800 
Marlborough   Gaslight    Co.   v.    Neal 

(166   Mass.   217;    44   N.   E.   Rep. 

139),  527,  568 
]\Iarlborough    Gaslight   Co.    v.    Neal 

(166   Mass.   217;    44   N.   E.    Rep. 

139),  460 
Marniet   v.    Archibald    (37    W.    Va. 

778;  17  S.  E.  Rep.  299),  100 
Marquis  of  Bute  v.  Thompson    ( 13 

M.  &  W.  487;   14  L.  J.  Exch.  95), 

79 
Marriage,  etc..  In  re    ([1896]  2  Ch. 

663),  608 
Marsh     v.     Butterworth     (4     Mich. 

575),  251 


TABLE   OF   CASES, 


Ixxv 


(References  are  to  pages.) 


Marsh    v.    Chickering     (101    N.    Y. 

396;   5  N.  E.  Rep.  56),  792 
Marsh   v.    Holley     (42    Conn.    453), 

296 
Marshall  v.  Forest  Oil  Co.   ( 198  Pa. 

St.    83;    47    Atl.    Rep.    927),    189, 

210 
Marshall    v.    Mellon     (179    Pa.    St. 

371;   36  Atl.  Rep.  201;  27  Pittsb. 

L.  J.    (N.   S.)    214;    35   L.  R.  A. 

816;    57   Am.    St.   Rep.   601),   51, 

289,  293 
Marshall  v.  Mellon  (26  Pittsb.  L.  J. 

(N.  S.)   290;   17  Pa.  Co.  Ct.  Rep. 

366),   135 
Marshall  v.  Welwood    (38  N.  J.  L. 

339),  701 
Martin  v.  Porter    (5  M.  &  W.   352; 

2  H.  &  H.  70),  48 
Martineau  v.  Steele    (14  Wis.  272), 

235 
Marvin  v.  Brewster,  etc.,  Co.   (55  N. 

Y.  538),  77,  329 
Maryland  Fire  Ins.  Co.  v.  Whiteford 

(31  Md.  219),  814 
Maryland  Steel  Co.  v.  Moorney   (88 

Md.  482;   42  Atl.  Rep.  60;   42  L. 

R.  A.  482),  780 
Mascott  V.  First,  etc.,  Ins.  Co.    (69 

Vt.  116;  37  Atl.  Rep.  255),  819 
Mascott   V.    Granite,    etc.,    Ins.    Co. 

35    Atl.    Rep.    75;    68    Vt.    253), 

809,   810,   819 
Mason  v.  Hill    (3  B.  &  Ad.  304;   5 

B.  &  Ad.  1 ;  2  N.  &  W.  747 ;  2  L. 

J.   K.  B.   118),  675 
Mason  v.  Ohio,  etc.,  Co.   ( 52  W.  Va. 

— ;  41  S.  E.  Rep.  418),  420,  426 
Massachusetts     National     Bank     v. 

Shinn    (18  N.  Y.  App.  Div.  276; 

46  N.  Y.  Supp.  329),  648 
Massot  V.  Moses   (3  S.  C.  fts),  78, 

79,  105 
Mather  v.  Frazer   (2  Kay.  &  J.  536; 

25  L.  J.  Ch.  361),  647 


Mathews  v.   People's,  etc..  Gas   Co. 

(179   Pa.   St.    165;    39   W.   N.   C. 

544;  27  Pittsb.  L.  J.   (N.  S.)  421; 

36  Atl.   Rep.  216),   140,  183,  184, 

196,  197,  264,  268 
Matson  v.  Farm  Building  Fire  Ins. 

Co.    (73  N.  Y.  310;   29  Am.  Rep. 

149,  reversing  9  Hun  415),  807 
Matthiesson,    etc.,    Co.    v.    La    Salle 

(117  111.  411;   2  N.  E.  Rep.  406; 

8  N.  E.  Rep.  81),  333 
Mauderbach  v.  Bethany,  etc..  Home 

(109    Pa.    St.    231;     2    Atl.    Rep. 

422),  229 
Mauldin  v.  Grenville  (33  S.  C.  1;  11 

S.  E.  Rep.  434;  8  L.  R.  A.  291), 

562 
Maxwell  v.  Brierly   (10  Copp.  L.  D. 

50),  32,  55 
Maxwell  v.   Todd    (112   N.   C.   '^77; 

16  S.  E.  Rep.  926),  70,   146,  190, 

191,   199,  215 
May  v.  Hazlewood  Oil  Co.   (152  Pa. 

St.    518;    25   Atl.   Rep.    564),   68, 

150,  172,  213 

May  V.  Thompson  (20  Ch.  Div.  705; 

51  L.  J.  Ch.  917;  47  L.  T.  295), 

315 
Maynell    v.    Surtees     (3    Sm.    &    G. 

101),  318 
Mays    v.    Cincinnati     ( 1    Ohio    St. 

268),  563 
Mays  V.  Dwight    (82   Pa.   St.   462), 

135,  142 
McBce  V.  Loftis    (1  Stroh.  Eq.  90), 

321 
McBee   v.    Sampson    (66    Fed.    Rep. 

416),   233 
McCahan  v.   Wharton    (121    Pa.   St. 

424;    15  Atl.   Rep.  615),   156,  163 
McCarnus  v.   Citizens'  Gaslight  Co. 

(40    Barb.    380),    788 
McCarty  v.  Mellon   (5  Pa.  Dist.  Rep. 

425),    192,    193,    195 
McCIay    v.     Western    Pennsylvania 

Gas  Co.   (201  Pa.  St.  197;  50  Atl. 

Rep.  C78),  123 
McClean   County  Coal   Co.   v.   Long 

(81  111.  359),  48 


Ixxvi 


TABLE  OF  CASES. 


(References  are  to  pages.) 


McClintock   v.    Dana    (106    Pa.    St. 

386),  290 
McClung   V.    North   Bend,    etc.,    Co. 

(31  Wkly.  L.  Bull.  9;  9  Ohio  Cir. 

Ct.    Rep.    259;    6    Ohio   Cir.   Dee. 

243;  1  Ohio  Dec.  247),  663,  665 
McConnell  v.  Denver    (35  Cal.  365), 

342 
McConnell    v.    Lawrence,    etc.,    Gas 

Co.     (30    Pittsb.    L.    J.     (N.    S.) 

346),   275 
McCord  V.  Mining  Co.  (64  Cal.  134), 

296,  301 
McCord    V.    Oakland    Quick    Silver 

Mining  Co.   (64  Cal.   134),  303 
McCormick  v.  Sutton  (97  Cal.  373; 

32  Pae.  Rep.  444),  335 
McCune   v.    Norwich    City   Gas    Co. 

(30  Conn.  521;  79  Am.  Dec.  278), 

575 
McDaniel  v.  Springfield  W.  W.  Co. 

(48  Mo.  App.  273),  607 
McDermott  v.  Burke    (16  Cal.  580), 

367 
McDivitt   V.    Philadelphia    Gas    Co. 

(160   Pa.    St.    367;    28   Atl.   Rep. 

948 )     525 
McDonald,  In  re   (16  Misc.    (N.  Y.) 

304;    39   N.   Y.   Supp.   367),    585, 

622 
McDowell  V.  Hendrix   (67  Ind  513), 

161,  229,  233 
McElhenny   v.   Hubert   Oil    Co.     (61 

Pa.  St.  188),  310,  311 
McElwain's    Appeal     (11    Atl.    Rep. 

(Pa.)   453),  64 
McElwaine  v.  Brown    (11  Atl.  Rep. 

(Pa.)    453),   359 
McElwaine  v.  Hosey  (135  Ind.  481; 

35  N.  E.  Rep.  272),  357,  360 
INIcFadden   v.    Los    Angeles    County 

(74  Cal.  571;   16  Pac.  Rep.  397), 

432 
MgFarland  v.   Peabody   Ins.   Co.    (6 

W.  Va.  425),  806 
McFarland    v.    St.    Paul,    etc.,    Ins. 

Co.  (46  Minn.  519;  49  N.  W.  Rep. 

253),  807,  824 


McFarlan  v.  Watson  (3  N.  Y.  286), 

246 
McGahan  v.   Indianapolis,  etc..   Gas 

Co.   (140  Ind.  33,5;  37  N.  E.  Rep. 

601;    29    L.   R.    A.    355;    49   Am. 

St.  Rep.   199),  690,  697,  705,  737 
McGillivray  v.  Evans    (27  Cal.  92), 

299,  300 
McGregor    v.    Camden    (47    W.    Va. 

193;  34  S.  E.  Rep.  936),  662,  664, 

668 
McGregor  v.  Equitable  Gas  Co.    (21 

Atl.   Rep.    13;    139   Pa.   St.   230), 

393,  396 
McGuffie   V.   Carter    (42  Mich.  497; 

4   N.  W.  Rep.  211),  229 
McGuire    v.     Wight     (18     W.     Va. 

507),  278 
Mclntyre  v.  Mclntyre  Coal  Co.  ( 105 

N.   Y.   264;    11   N.   E.   Rep.  645), 

114,   271 
McKay  v.   Pennsylvania  Water  Co. 

(6  Pa.  Dist.  Rep.  364;  27  Pittsb. 

L.  J.    (N.  S.)    406),  395 
McKeage   v.   Hanover   Fire   Ins.   Co. 

(81  N.  Y.  38;  37  Am.  Rep.  471), 

636 
McKee  v.  Colwell   (7  Pa.  Super.  Ct. 

607),  188 
McKelway  v.  Seymour    (29  N.  J.  L. 

321),  199 
McKenna  v.  Bridge  Water  Co.   (193 

Pa.    St.    333;    45    Atl.    Rep.    52; 

47  L.  R.  A.  790),  691,  724,  739 
McKenzie    v.    Bismarck    Water    Co. 

(6    N.    D.    361;    71    N.    W.    Rep. 

608),  381 
McKinney     v.     Reader      (7     Watts. 

(Pa.)   123),  168 
McKircker    v.    Hawley     (16    Johns. 

289),   366 
McKnight    v.    Kreutz     (51    Pa.    St. 

232),   176,   190,  200,  217 
McKnight  v.  Natural  Gas  Co.    (146 

Pa.    St.    185;    23    Atl.    Rep.    164; 

28   Am.   St.   Rep.   790),   114,   145, 

160.  275 


TABLE  OF  CASES. 


Ixxvii 


(References  are  to  pages.) 


McLaren  v.  Byrnes    (80  Mich.  275; 

45  N.  W.  Rep.  143),  357,  361 
McLean  v.  Palmer    (2  Kulp.    (Pa.) 

349),  632 
McMillan  v.   Philadelphia  Co.    (159 

Pa.    St.    142;    28   Atl.   Rep.   220), 

84,   89,    174,    184,    392 
McNally    v.    Connolly    (70   Cal.    3; 

11  Pac.  Rep.  320),  320 
McNeal,  etc.,  Co.   v.  Rowland    (111 

N.  C.  615;   16  S.  E.  Rep.  857;  20 

L.  R.  A.  743),  363 
McNeal   Pipe,  etc.,  Co.  v.  Woltman 
(114   N.   C.    178;    19   S.   E.    Rep. 

109),  364 
McNish  V.  Stone    (152  Pa.  St.  457; 

23  Pittsb.  L.  J.   (N.  S.)  232),  68, 

148,   166,   168 
McQuire  v.  Wright  (18  W.  Va.  507), 

644 
McRea  v.  Central  Nat.  Bank   (66  N. 

Y.  489),  629 
McShane  v.  Kenkle    (18  Mont.  208; 

44   Pac.    Rep.   979;    33   L.    R.   A. 

851),  335 
Meadville  Fuel  Gas  Co.'s  Appeal    (4 

Atl.  Rep.   (Pa.)   733;  14  Am.  and 

Eng.   Corp.   Cas.   123,  reversing  1 

Pa.  C.  C.  Rep.  448),  427,  483 
Meagher  v.  Reed    (14  Colo.  335;  24 

Pac.  Rep.  681;   9  L.  R.  A.  455), 

345 
Mears    v.    Humboldt    Ins.    Co.     (92 

Pa.    St.    15;    37   Am.   Rep.    647), 

800 
Mears  v.  Insurance  Co.   (92  Pa.  St. 

15;   37  Am.  Rep.  647),  813,  817, 

822 
Mechanics',   etc.,    Ins.   Co.   v.    Floyd 

(20  Ky.  L.  Rep.   1538;   49  S.  VV. 

Rep.  543),  815 
Medex  v.  Gaslight  &  Coke  Co.    (15 

Gas  J.  75),  723,  764 
Meeker  v.   Browning    (9  Ohio  C.  D. 

108;  17  Ohio  C.  C.  548),  12#,  253, 

258,  262.  274 
Meiers  v.  Metropolitan  Gaslight  Co. 

(11  Daly  119),  588 


Meistrell    v.    Reach     (56    Mo.    App. 

243),  356 
Mellon  V.  Allegheny  Co.  (3  Pa.  Dist. 

Ct.  Rep.  422),  838 
Melms  V.   Pabst   Brewing  Co.    ( 104 

Wis.  7;   79  N.  W.  Rep.  738),  291 
Memphis    v.    Memphis    Gayoso    Co. 

(9  Heisk.  531),  568 
Memphis  v.  Memphis  Water  Co.    (5 

Heisk.   495),   479,  480 
Memphis   Gaslight   Co.   v.   State    (6 

Coldw.    310;    98    Am.   Dec.   452), 

645,  832 
Memphis    Gayoso    Gas    Co.   v.    Wil- 
liamson   (9  Heisk.  314),  488,  490 
Menneilley  v.  Employers',  etc.,  Corp. 
(148   N.    Y.    596;    43    N.    E.    Rep. 

54;  31  L.  R.  A.  686,  affirming  25 

N.  Y.   Supp.  230),   759,  829,   830 
Merchants',  etc.,   Ins.  Co.  v.   Wash- 
ington,   etc.,    Ins.    Co.    (1    Handy 

408),  808 
Mercur  v.  State  Lime,  etc.,  Co.   (171 

Pa.   St.    12;    32   Atl.   Rep.    1126), 

301 
Meridian  National  Bank  v.  McConi- 

ca    (8    Ohio   C.    Ct.   Rep.   442;    4 

Ohio  Cir.  Dec.  106),  73,  342,  360 
Merrifield    v.    Lombard     (13    Allen 

16),   653 
Merrill   v.    Frame    (4   Taunt.   329), 

268 
Merrimac    River    Savings    Bank    v. 

Lowell    (152  Mass.  556;  26  N.  E. 

Rep.  97;    10  L.   R.  A.   122),   591, 

607 
Merritt  v.  Judd    (14   Cal.   60),   640 
Mersey    Docks   &   Harbor    Board   v. 

Liverpool,    etc.,    Co.     (26    Gas    J. 

327),  734,   762 
Metropolitan,    etc.,    Assn.    v.    Froi- 

land    (161   111.   30;  43  N.  E.  Rep. 

766,   affirming  59  111.  App.   522), 

830 
Metropolitan,      etc.,      Managers     v. 

Hill   (6  App.  Cas.  193;  50  L.  J.  Q. 

B.  353;   44  L.  T.  653;   29  W.  R. 

617;    45   J.   P.   664),   672 


Ixxviii 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Metropolitan  Gas  Co.  v.  Hyde  Park 

(27    111.   App.    361,    affirmed    130 

111.  42;   22  N.  E.  Rep.  616),  522 
Metropolitan  Gaslight  Co.  v.  Mayor 

(4   N.   Y.  Wkly.   Dig.  82).   472 
Mettler  v.  Miller    (129  111.  630;   22 

N.  E.  Rep.  529),  281 
Metzger   v.    Beaver   Falls    (178    Pa. 

St.  1 ;  39  W.  N.  C.  108 ;  27  Pittsb. 

L.   J.    (N.   S.)    102;    35  Atl.   Rep. 

1134,    overruling    Lehigh     Water 

Co.'s    Appeal,    102    Pa.    St.    515), 

482 
Metzger   v.    Sehultz    (16    Ind.   App. 

454;  43  N.  E.  Rep.  886;  45  N.  E. 

Rep.  619),  717,  719,  741 
Mickle  V.   Douglas    (75   la.   78;    39 

N.  W.  Rep.   198),  221 
Midland  R.   W.  Co.  v.   Fisher    (125 

Ind.    19;    24    N.    E.    Rep.    756), 

102 
Middle,  etc.,  Co.  v.  Oakbank  Oil  Co. 

(18     Ct.     Sess.    Cas.    4th    Series 

788),   .547 
Miles    V.    Delaware,    etc.,    Co.     (140 

Pa.   St.   623;    21    Atl.   Rep.   427), 

839 
Milford  V.  Milford  Water  Co.    (124 

Pa.   610;    17   Atl.  Rep.   185),  475 
Millandon  v.   New  Orleans  Ins.   Co. 

(4    La.    Ann.    15;    3    Benn.    Fire 

Ins.  Cas.  4),  804 
Miller  v.  Balfour   (138  Pa.  St.  183; 

22  Atl.  Rep.  86),  68,  188,  277 
Miller   v.   Butterfield    (79    Cal.   62; 

21    Pac.   Rep.   543),   344 
Miller  v.  Lapham    (44  Vt.  434),  328 
Miller  v.  Michel   (13  Ind.  App.  190; 

41   N.   E.   Rep.   467),  268 
Millett  V.  Davey   (31  Beav.  470;   32 

Leg.  Ch.  122;   7  L.  T.  551;   11  W. 

R.  170;  9  Jur.    (N.  S.)    92),  372, 

375,  376 
Millington  v.  Griffiths   (30  L.  T.  65 ; 

23  Gas  J.  215),  651,  652 
Millvale   Borough,   In   re    (162   Pa. 

St.  374;   29  Atl.  Rep.  641,   644), 
482 


Milnes  v.  Hudersfield  (11  App.  Cas. 

511;    56  L.  J.  Q.  B.   1;    55  L.  T. 

617;  34  W.  R.  761;  50  J.  P.  676, 

Affirming   L.    R.    12;    Q.    B.   Div. 

443 ;  and  L.  R.  10  Q.  B.  Div.  124 ) , 

616 
Milwaukee  Gaslight  Co.  v.  Schooner 

Gamecock     (23    Wis.     144),    549, 

696 
Minshull  v.  Lloyd  ( 2  M.  &  W.  459 ) , 

646 
Minturn  v.  La  Rue   (23  How.  435), 

498 
Miser   v.   O'Shea    (37   Ore.   231;    62 

Pac.  Rep.  491),  82 
Mississinewa  Mining  Co.  v.   Patton 

(129    Ind.    472;    28    N.    E.    Rep. 

1113;   28  Am.   St.  Rep.  203),  53, 

687,  699,  723 
Missouri,  etc.,  Co.  v.  Murphy    ( 170 

U.  S.  78,  affirming  130  Mo.  10;  31 

S.  W.  Rep.  594),  444,  515 
Mitchell  V.  Burwell   (110  la.  10;  81 

N.  W.  Rep.  193),  359,  363 
Mitchell    v.    Negaunee     (113    Mich. 

359;    71   N.   W.   Rep.    646;    38  L. 

R.  A.  157),  559 
Mitchell   V.   Potomac   Ins.   Co.    (183 

U.    S.   42;    22    Sup.   Ct.   Rep.   22, 

affirming    16    U.    S.    App.    D.    C. 

241),  806 
Mobile   &   Ohio   R.   R.   Co.   v.   Davis 

(130    111.     146;     22    N.    E.     Rep. 

850),  512 
Monfort    v.    Lanyon    Zinc    Co.     (72 

Pac.    Rep.    (Kan.)    784),    70,    74, 

84,  92,  93,  113,  152,  155,  173,  193, 

194,    195,    306 
Monroe    v.   Armstrong    (96   Pa.    St. 

307),    146,    166,    168,    198 
Monroe   v.   Perkins    (9   Pick.    298), 

274 
Montague   v.   Dent    (10   Rich.    135; 

67  Am.  Dec.  572),  633 
Montgomery  v.  Capital  City  Water 

Co.  (92  Ala.  361;  9  So.  Rep.  339), 

532,  533 


TABLE   OF   CASES. 


Ixxix 


(References  are  to  pages.) 


Montgomery   v.   Fireman's   Ins.    Co. 

(16  B.  Mon.  427),  805 
Montgomery  Gas  Co.  v.  Montgomery 
(87  Ala.  245;    0  So.  Rep.   113;   4 
L.  R.  A.  616),  480,  500,  503 
Montjoy   v.   Pillow    (64   Miss.   705; 

2  So.  Rep.  108),  488 
Montooth   V.    Gamble    (123   Pa.   St. 

240;   16  Atl.  Rep.  594),.  641 
Montpelier,   etc.,   Co.  v.   Stephenson 
(22  Ind.  App.  175;  53  N.  E.  Rep. 
444 
Montreal   Gas    Co.    v.    Cadieux    (11 

Can.  Q.   B.  93),  608,  610 
Montreal  Gas  Co.  v.  Cadieux  (68  L. 
J.   P.   C.    126;    [1889]    App.   Cas. 
589;  81  L.  T.   (N.  S.)   274),  608 
ilontreal  v.  Standard  Light  &  Power 
Co.   ([1897]   App.  Cas.  527;  66  L. 
J.  P.  C.  113;  77  L.  T.  115),  517 
Moody   V.    Alexander    ( 145    Pa.    St. 

571;  23  Atl.  Rep.  161),  332 
iloon  V.   Pittsburg  Plate  Glass  Co. 
(24  Ind.  App.  34;   56  N.  E.  Rep. 
108),   156,   276 
Moore's   Appeal    (4   Pa.   Dist.   Rep. 

703),  840 
Moore  v.  Jennings   (47  W.  Va.  181; 

34  S.  E.  Rep.  793),  51,  126 
Moore   v.    Miller    (8    Pa.    St.   272), 

62,  74 
Moore  v.  Protection  Ins.  Co.  ( 29  Me. 

97;  48  Am.  Dec.  514),  812 
Moore  v.  Rollins   (45  Me.  493),  287 
Moore  v.   Small    (19   Pa.   St.  461), 

315 
Moreland   v.    Frick    Coke    Co.     (170 
Pa.    St.    33;    32    Atl.    Rep.    634), 
321 
Morey  v.  Metropolitan  Gaslight  Co. 
38  N.  Y.  Supr.  Ct.  185   (6  J.  &  S. 
185),  577,  590,  607,  610 
Morgan  v.  Powell   (9  M.  &  W.  672), 

49 
Morgan  v.   Yard    (13   Pittsb.   L.  J. 
(N.   S.)    178;    12  W.  N.  C.  449), 
229 


Morganstern  v.  Thrift  (66  Cal.  577; 

6  Pac.  Rep.  689),  350 
Moritz    V.   Lovelle    (77   Cal.    10;    18 

Pac.  Rep.  803 ) ,  94 
Morris  v.  Guffey    (188  Pa.  St.  534; 

41  Atl.  Rep.  731),  102 
Morris  v.  Southworth  (154  111.  118; 

39  N".  E.  Rep.  1099),  701 
Morristown  v.  East  Tennes.see,  etc., 
Co.     (1L5    Fed.    Rep.    304),    420, 
502,   516,    522,    530 
Morrow,  Ex  parte    (1  Lowell's  Dec. 
386;    2   N.    B.   R.    (2d   ed.)    665), 
638 
Morrow  v.   Sawyer    (82  Ga.  226;   8 

S.  E.  Rep.  51),  229 
Morse  v.  Buffalo,  etc.,  Ins.  Co.    (30 
Wis.  534;   11  Am.  Rep.  587),  800 
Morss   V.   Gleason    (64   N.  Y.   204), 

341 
Mose   V.   Hastings,   etc.,    Co.    (4   Tr. 

&  F.  324;   13  Gas  J.  231),  707 
Mosley    v.    Vermont,    etc.,    Ins.    Co. 

(55  Vt.   142),   54 
Mostyn   v.   Lancaster    (23    Ch.   Div. 
583;    51   L.  .J.   Ch.   696;    46  L.  T. 
648;   48   L.   T.   715;    31    W.   R.   3, 
686),  378,  380 
Moule   V.    Garrett    (L.    R.    5    Exch. 
132;   39  L.  J.  Exch.  69;  22  L.  T. 
343;     18    W.    R.    697),    231,    235, 
244 
Mountjoy's  Case   (Godb.  18;  1  Amb. 

307;  4  Leon.  147),  105 
Moyers   v.   Tiley    (32    Pa.   St.   267), 

197 
Mudsill  Mining  Co.  v.  Watrous   (61 
Fed.   Rep.    163;    9   C.   C.  A.   415), 
174 
Mueller  v.  Egg  Harbor  City   (55  N. 
J.  L.  245;    26  Atl.  Rep.  89),   513 
Muhlenberg    v.    Henning     (116    Pa. 
St.    138;    9    Atl.    Rep.    144).    68, 
162 
Municipal   Chamber  of  Hamburg  v. 

Gas  Co.   (5  Gas  J.  710),  549 
Munroe   v.   Armstrong    (96   Pa.    St. 
307),   179,   182 


Ixxx 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Munn   V.    Illinois    (94    U.    S.    113), 

440,  618 
Munn  V.  Stone  (   4  Cush.   146),   329 
Murdock  v.  Chenango,  etc.,  Ins.  Co. 

(2  N.  Y.  210),  801 
Murphy  v.  Hardee  (12  Ohio  Cir.  Ct. 

Dec.  837),  226 
Murphy  v.  Stell    (43  Tex.  123),  315 
Murray  v.   Allard    (100  Temi.    100; 

43   S.   W.  Rep.   355;    39  L.  R.  A. 

'249;    66   Am.   St.   Rep.    740),   32, 

33,  51,  322,  330 
Murray    v.    Gibson     (21     111.    App. 

488),  553 
Murray   v.   Haverty    (70    111.    318), 

247,  296,  297 
Murray  v.    Heinze    (17    Mont.    353; 

42   Pac.   Rep.   1057;   43   Pac.   Rep. 

713),  195 
Murtland  v.  Callihan    (2  Pa.  Super. 

Ct.  Rep.   340;   38  W.  N.  C.  512), 

304,  307,  353 
Murzesheimer    v.     Continental    Ins. 

Co.    (5  Jones  &  S.    (N.  Y.)    332), 

524 
Musgrove    v.    Bonser     (5    Ore.    313; 

20  Am.  Rep.  737),  184 
Musick    V.    Barney     (49    Mo.    458), 

104 
Mutual   Electric  Light   Co.   v.   Ash- 
worth    (118  Cal.   1;   50  Pac.  Rep. 

10),   533 
Myers  v.  Hudson,  etc.,  Co.    (44  Atl. 

Rep.     (N.    J.)     713,    reversing    37 

Atl.  Rep.  618),  525 

N 

Napier    v.    Darlington    (70    Pa.    St. 

64),  91 
Narcross  v.  James    (140  Mass.  188; 

2  X.  E.  Rep.  946),   109 
Nash    V.    Berkmeir    (83    Ind.    536), 

282 
Nassau,   etc.,    Co.   v.    Brooklyn    (25 

Hun  567),  832 
Nation's  Case    (L.  R.  3  Eq.  77;   36 

L.  J.  Ch.   112;    15   L.  T.  308;   15 

W.  R.  143),  352 


National   Bank   v.   North    (160   Pa. 

St.  303;  28  Atl.  Rep.  394),  636 
National    Foundry,    etc..    Works    v. 

Oconto  Water  Co.    (52   Fed.  Rep. 

29),  363,  513,  522 
National  Meter  Co.  v.  Poughkeepsie 

(75  Fed.  Rep.  405),  620 
National  Transit  Co.  v.  Weston  ( 121 

Pa.    St.   485;    15    Atl.    Rep.    569), 

277 
National  W'.  W.  Co.  v.  Kansas  City 

(28  Fed.  Rep.  921),  542 
National  W.  W.  Co.  v.  Kansas  City 

(20  Mo.  App.  237),  542 
Natural    Gas     Co.    v.    Philadelphia 

Co.  (158  Pa.  St.  317;  27  Atl.  Rep. 

951),  88,  120,  224,  263 
Natural  Gas  Co.  v.  Pittsburg  ( 1  Pa. 

Co.  Ct.  Rep.  311),  527,  534 
Natural  Oil,  etc.,  Co.  v.  Teel   (67  S. 

W.  Rep.    (Tex.  Civ.  App.)    45;  68 

S.  W.  Rep.  979),  71,  93,  211 
Neal    V.    Atlantic    Refining    Co.     (4 

Pa.  Dist.  Rep.  49),  779 
Neale  v.  Neale    (9  Wall.  1),  315 
Nebraska    City    v.    Nebraska,    etc., 

Co.    (9   Neb.   339;    2   N.   W.   Rep. 

870),  446,  459,  464,   613,   837 
Neel  v.  Neel    (19  Pa.  St.  323),  287, 

288,    294 
Neeley  v.  City  of  Henderson   (55  S. 

W.  Rep.   (Ky.)   554),  835 
Negley  v.  Morgan   (46  Pa.  St.  281), 

232 
Nego   V.   Barber,    etc.,   Co.    (17   Mo. 

App.  294),  63 
Neill   V.  Lacy    (110  Pa.   St.   294;    1 

Atl.  Rep.  325),  840 
Neill    V.    Shamburg     (158    Pa.    St. 

263;   27  Atl.   Rep.  992),  306,  342 
Nelson    v.    Bridges     (2    Beav.    239; 

3  Jur.  1098),  318 
Nelson  v.  Eachel    (158  Pa.   St.  372; 

27  Atl.  Rep.  1103),  193,  216 
Nelson   v.  La  Porte    (33   Ind.  258), 

471 
Nelson   v.    O'Neal     (1    Mont.    284), 

654 


TABT>E  OF   CASES. 


Ixxxi 


(References  are  to  pages.) 


Neumoyer   v.   Andreas    (57    Pa.   St. 

446),   80 
Nene  Valley  v.  Dunkley   (4  Ch.  Div, 

1),  314 
Neosho   City    Water    Co.   v.   Neosho 

(136  Mo.  498;  38  S.  W.  Rep.  89), 

452,  472,  508,  568 
Nesbit  V.  Godfrey    ( 155  Pa.  St.  251 ; 

25  Atl.  Rep.  621 ) ,  276 
Nevada  Sierra  Oil  Co.  v.  Home  Oil 

Co.   (98  Fed.  Rep.  673),  326,  335 
New    Albany    W.    W.    v.    Leonsville 

(122  Fed.  Rep.  776),  459 
New  Castle  Water  Co.  v.  West  New 

Castle    Water    Co.     (6    Pa.    Dist. 

Rep.  10;   18  Pa.  Co.  Ct.  498),  483 
New  England,  etc.,  Ins.  Co.  v.  W^et- 

more  (32  111.  221),  801 
New  Gaslight  Co.   (7  Pa.  Dist.  Rep. 

151;   1  Dauph.  Co.  Rep.  22),  483, 

530 
New  Memphis  Gas,  etc.,  Co.  v.  Mem- 
phis    (72    Fed.    Rep.    952),    426, 

428,  430 
New    Orleans    v.    Clark     (95    U.    S. 

644),  568 
New  Orleans  v.  Gaslight  Co.   (5  La. 

Ann.  439),  674 
New   Orleans   Gaslight  Co.   v.   Hart 

(40    La.    Ann.    474;    4    So.    Rep. 

215;   8  Am.  St.  Rep.  844;  20  Am. 

and    Eng.    Corp.    Cas.    258),    426, 

444,    473,    548 
New  Orleans,  etc.,  Co.  v.  Louisiana, 

etc.,  Co.    (11  Fed.  Rep.  277),  536 
New  Orleans  Gas  Co.  v.   Louisiana 

Light    Co.     (115    U.    S.    650;     10 

Am.  and  Eng.  Corp.   Cas.   689;   6 

Sup.  Ct.  Rep.  252),  420,  422,  426, 

493,  577 
New   Orleans   Gaslight   Co.   v.   New 

Orleans    (42  La.  Ann.   118;    7   So. 

Rep.  559),  450 
New  Orleans,  etc.,   Co.  v.   Paulding 

12    Rob.     (La.)     378),    577,    578, 

607,   609  ^ 

New   Orleans   W.    W.    Co.   v.    Ernst 
(32  Fed.  Rep.  5),  493,  500 


New  Orleans  Water  Works  v.  Rivers 

(115  U.  S.  674;   6  Sup.   Ct.  Rep. 

273),  493,  500 
New  Rochelle  Water  Co.,  In  re   (46 

Hun  525),  388 
New  York  v.  Squire  (145  U.  S.  175), 

444 
New    York,   etc.,   Ins.    Co.   v.    Lang- 
don    (6   Wend.  623),  812,  815 
New   York    Central,    etc.,    R.    R.    v. 

Metropolitan  Gaslight  Co.  (5  Hun 

201),  577 
New  York,  etc.,  Co.  v.  Metropolitan 

Gaslight   Co.    (63    N.    Y.    326;    5 

Hun  201),  390 
New  York  Gaslight  Co.  v.  Mechan- 
ics'  Fire  Ins.  Co.    (2  Hall.   108), 

630 
New  York  Life  Ins.  Co.  v.  Allison 

(107  Fed.   Rep.   179;   46  C.  C.  A. 

229),  631,  636 
New   Y^ork   Mail,    etc.,    Co.   v.    Shea 

(30  N.  Y.  App.  Div.  266;    51   N. 

Y.  Supp.  503,  reversing  49  N.   Y. 

Supp.  951),  518 
New   York   Mutual    Gaslight   Co.   v. 

New    York    City     (49    How.    Pr. 

227),  469 
Newark   v.   Newark   W.   W.   Co.    (4 

Ohio  N.  P.  341;  6  Ohio  Dec.  518), 

541 
Newark,  etc.,  Board  v.  Passaic    (45 

N.  J.  Eq.  393;   18  Atl.  Rep.  106), 

654 
Newark  Coal  Co.  v.  Upson   (40  Ohio 

St.  17),  77 
Newark  Gas,  etc.,  Co.  v.  Newark    (8 

Ohio    S.    &    C.    P.    Dec.    418;     7 

Ohio  N.  P.  76),  257.  424,  524 
Newberryport    Water    Co.    v.    New- 

berryport    (168  Mass.  541;   47  N. 

E.  Rep.  533),  392 
Newport  v.  Commonwealth    (21  Ky. 

L.   Rep.  42;    50  S.   W.   Rep.   845; 

51    S.  W'.   Rep.   .343;    45   L.  R.  A. 

518),  835 
Newport  v.  Newport  Light  Co.    (84 

Ky.  166),  480,  489,  573 


Ixxxii 


TABLE  OF   CASES. 


(Relerences  are  to  pages.) 


Newport  v.  Newport  Light  Co.    ( 11 

Ky.  L.  Rep.   (Ky.)   840;  12  S.  W. 

Rep.  1040),  447,  489,  528 
Newport  Light  Co.  v.  City  of  New- 
port    (14    Ky.    L.    Rep.    464;    20 

S.  W.  Rep.  434),  835 
Niagara   Fire   Ins.  Co.   v.   De  Graff 

(12  Mich.  124),  815 
Niagara    Fire    Ins.    Co.    v.   Fidelity 

(125    Pa.    St.   516;    16    Atl.    Rep. 

791),  827 
Nichols  V.  Brush,  etc.,  Co.    (53  Hun 

137;    6    N.    Y.    Supp.    601),    747, 

782 
Nicholasville  Water  Co.  v.  Nicholas- 

ville   (18  Ky.  L.  Rep.   (Ky.)    592; 

36  S.  W.  Rep.  549;  38  S.  W.  Rep. 

430),  464 
Nigro     V.     Hatch      (11     Pac.     Rep. 

(Ariz.)   177),  640 
Niles  W.  W.  Co.  v.  Niles   (59  Mich. 

311;  26  N.  W.  Rep.  525),  469 
Nilson    V.    Goldstein     (152    Pa.    St. 

493;  25  Atl.  Rep.  493),  94 
Nisbet  V.  Mitchell  Innes  (7  R.  575), 

633 
Nisbet  V.  Nash    (52  Cal.  540),  342, 

347 
Noble  V.  Sylvester   (42  Vt.  146),  42 
Noblesville  v.  Noblesville  Gas,   etc., 

Co.   (157  Ind.  162;  60  N.  E.  Rep. 

1032),    421,    424,    425,    431,    577, 

596,  597,  599 
Noke's  Case   (4  Rep.  80b.  Cro.  Eliz. 

674),  268 
Nolan  V.   Lovelock    (1   Mont.   224), 

340,  344,  347,  348,  349 
Normantown   Gas   Co.   v.   Pope    (52 

L.  J.   Q.   B.   629;    32  W.   R.    134; 

49  L.  T.  798),  547 
North    V.    Percival     ([1898]    2    Ch. 

128;    67  L.   J.  Ch.   321;    78  L.  T. 

615;  46  W.  R.  552),  316 
North  Springs  Water  Co.  v.  Tacoma 

(21  Wash.  517;  58  Pac.  Rep.  773; 

47  L.  R.  A.  214),  496,  565 


Northern,  etc.,  Co.  v.  Crawford   (24 

Tex.  Civ.  App.  574;  59  S.  W.  Rep. 

916),  810,  818 
Northern  Colorado,  etc.,  Co.  v.  Rich- 
ards   (22  Colo.' 450;  45  Pac.  Rep. 

(423),  585,  594,  601 
Northern  Liberties  v.  Northern  Lib- 
erties Gas  Co.    (12   Pa.  St.  318), 

420,  427,  532,  545 
Northern  Pacific  Ry.  v.  Walker   (47 

Fed.  Rep.  681),  335 
Northwestern     Ohio,     etc.,     Co.     v. 

Browning   (15  Ohio  Cir.  Ct.  Rep. 

84;   8  Ohio  C.  D.   188),   150,   201, 

220,   215 
Northwestern  Ohio,  etc.,  Co.  v.  City 

of  Tiffin   (59  Ohio  St.  420;  54  N. 

E.    Rep.    77;    41    Wkly.    L.    Bull. 

48),  88,   103.  152 
Northwestern,  etc.,  Co.  v.  Davis    (9 

Ohio  C.   Ct.   Rep.  551;    38    Wkly. 

L.   Bull.   200;    40  Wkly.  L.   Bull. 

251;   6  Ohio  Cir.  Dec.  529),  84 
Northwestern,  etc.,  Ins.  Co.  v.  Ger- 

mania    Fire    Ins.     Co.     (40    Wis. 

446),  796,  826 
Northwestern  Ohio,  etc.,   Co.  v.   Ul- 

lery   (67  N.  E.  Rep.   (Ohio)   494), 

103,  230 
Norton  v.  Cooper    (5  DeG.  M.  &  G. 

728;    25  L.   J.   Ch.   121;    23  L.   T. 

(0.  S.)    125;   2  W.  R.  362),  373, 

375,   377 
Norton  v.  Snyder    (2  Hun  82),   329 
Norwalk    Gaslight   Co.   v.    Norwalk 

(63  Conn.  495;  28  Atl.  Rep.  32), 

545 
Norwich   Fire  Ins.  Society  v.   Stan- 
dard Oil  Co.    (59  Fed.  Rep.  984; 

8   C.    C.    A.   433;    19   U.    S.   App. 

460),  827 
Norwi-'ih    Gaslight    Co.    v.    Norwich 

City  Gas  Co.    (25  Conn.  19),  446, 

486,    537 

0 

Oak  B  >rbor  Gas,  Co.  v.  Murphy    (7 
Ohie  Dec.  700),  157 


TABLE   OF   CASES. 


Ixxxiii 


(References  are  to  pages.) 


Oak  Ridge  Coal  Co.  v.  Rogers    (108 

Pa.  St.  147),  43 
Ober  V.  Schenck    (23  Utah  614;    65 

Pac.  Rep.  1073),  228 
Oconto  Water  Co.  v.  National  Foun- 
dry  (59  Fed.  Rep.  19;  7  C.  C.  A. 

603),   363,    364,    508 
O'Donnell  v.  Luskin    (12  Mont.   Co. 

L.  Rep.   (Pa.)   109),  75 
Offerman  v.  Starr    (2  Pa.  St.  394), 

73 
Ogden  V.  Jennings    ( 62  X.  Y.  526 ) , 

93 
Ogden  V.   Hatry    (145   Pa.   St.   640; 

23  Atl.  Rep.  334),  183,  266,  267 
Oglesbys  v.  Hughes   (96  Va.  115;  30 

S.  E.  Rep.  439),  99 
Ohio,  etc.,  Co.  v.  Fishburn   (61  Ohio 

St.  608;  56  N.  E.  Rep.  457),  775 
Ohio  Gas  Fuel  Co.  v.  Andrews    (50 

Ohio     St.     695;     35    N.    E.     Rep. 

1059;  29  L.  R.  A.  337),  556,  094 
Ohio   Iron   Co.  v.   Auburn   Iron   Co. 

(64   Minn.   404;    67   N.   W.    Rep. 

221),  202 
Ohio  Oil  Co.  V.  Geiest  (30  Ind.  App. 

— ;  65  N.  E.  Rep.  534),  256 
Ohio  Oil  Co.  V.  Harris  ( 1  Ohio  N.  P. 

132;    1   Ohio  Dec.   157),   128,   147, 

207 
Ohio  Oil  Co.  V.  Hurlburt    (14  Ohio 

C.  C.  144;  7  Ohio  Dec.  321,  revers- 
ing  6   Ohio  Dec.   305),   146,    148, 

182,  191,  192 
Ohio  Oil  Co.  V.  Indiana    (177  U.  S. 

190;    20  Supr.  Ct.  Rep.  585),  33, 

34,  39,  42,  44,  55,  417.  418 
Ohio  Oil  Co.  V.  Kelley  (9  Ohio  C.  C. 

Rep.  511;    6   Ohio  Cir.  Dec.  470; 

40   W^\j.   L.    Bull.    338;    3    Ohio 

Dec.   186),  64,   127,   129 
Ohio  Oil  Co.  V.  Lane    (59  Ohio  St. 

307;  52  N.  E.  Rep.  791;  40  Wkly. 

L.    Bull.   404;    41    Wkly.   L.   Bull. 

121),   252,   276 
Ohio  Oil  Co.  V.  Toledo,  etc.,  S).    (4 

Ohio  C.  Ct.  Rep.  210;  2  Ohio  Cir. 

Dec.  505),  73 


Ohio  Valley  Gas  Co.,  In  re    (6  Pa. 

Dist.   Rep.   200;    27   Pittsb.   L.  J. 

(N.  S.)   321),  383,  390,  395 
Oil   City   Gas   Co.   v.   Robinson    (99 

Pa.    St.    1;    13    Repr.    253),    718, 

731,  747,   749 
Oil  City  i'uel  Supply  Co.  v.  Boundy 

(122    Pa.    St.    449;    15    Atl.    Rep. 

865),   750 
Oil  Creek,  etc..  R.  R.  Co.  v.  Keighron 

(74   Pa.  St.  316),    399 
O'Keefe  v.  Kennedy    (3  Cush.  325), 

247 
Old  Town  V.   Dooley    (81    111.   255), 

333 
Olive    Land,    etc.,    Co.    v.    Olmstead 

(103  Fed.  Rep.  568),  335 
Oliver   v.    Goetz    (125   Mo.    370;    28 

S.  W.  Rep.  441),  220 
Olmstead    v.    Morris   Aqueduct     (47 

X.  J.  L.   311),  575 
Omaha,  etc.,  Co.  v.  Burns    (49  Xeb. 

229;   68  X.  W.  Rep.  492),  360 
Omaha,  etc.,  Co.  v.  Tabor   ( 13  Colo. 

41;  21  Pac.  Rep.  925;   5  L.  R.  A. 

236),  43,  79,  82,  293,  297,  305 
Omaha  Horse  Ry.  Co.  v.  Cable  Tram- 
way Co.    (30  Fed.  Rep.  324),  490, 

528 
Omaha  Ry.  Co.  v.   Granite  Ins.  Co. 

63     Xeb.     514;     73    X.    W.    Rep. 

950),  827 
Omberg   v.   U.    S.,   etc..    Association 

(111    Ky.    303;    40    S.    W.    Rep. 

909),  830 
Omslaer     v.     Philadelphia     Co.     (31 

Fed.    Rep.    354;    18    Pittsb.   L.    J. 

(X.  S.)   4),  549,  696 
O'Xeil  V.   Buffalo  Fire   Ins.    Co.    (3 

X.  Y.  122),  813 
Ontario  Natural  Gas  Co.  v.  Gosfiekl 

(18   Ont.  App.  626;    38   Am.  and 

Eng.  Corp.  Cas.  253),  32,   333 
Ontario  Xatural  Gas   Co.   v.   Smart 

(19  Ont.  Rep.  595),  32,  45 
Opinion  of  the  Justices    (150  Mass. 

592:  24  X.  E.  Rep.  1084;   8  L.  R. 

A.  487),  558 


Ixxxiv 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Oram's  Estate  (5  Kulp.   (Pa.)  423), 

278 
Orient  Ins.  Co.  v.  Leonard   (120  Fed. 

Rep.    808),    805 
Orth  V.  West  &  East  Oil  Co.    (159 

Pa.    St.    388;    28   Atl.    Rep.    180), 

360 
Osborne  v.  San  Diego,  etc.,  Co.   ( 178 

U.    S.   22;    20   Sup.   Ct.   Rep.   860, 

affirming  76  Fed.  Rep.  319).  428 
Osgood  V.  Abbott   (58  Me.   73),  199 
Oskaloosa  Water  Co.  v.  Board    (84 

la.  407;  51  N.  W.  Rep.  18),  833 
Otersbach  v.  Philadelphia    (161   Pa. 

St.    Ill;    28  Atl.  Rep.  991),    709, 

712,  722,  737,  749 
Ott  V.  Sprague   (27  Kan.  620).  284 
Ottawa  Gaslight  Co.  v.  Graham   (28 

111.  73;   39   111.  598;   35  111.  346), 

651,  653,  664,  673,  758 
Ottawa    Gaslight    Co.    v.    Thompson 

(39    III.   598),   664 
Otto  Township  v.  Wolf   (106  Pa.  St. 

608),  789 
Ould  V.    Richmond    (23   Gratt.  464; 

14  Am.  Rep.  139),  563 
Owensboro    Gaslight    Co.    v.    Hilde- 

brand    (19   Ky.   L.   Rep.   983;    42 

S.  W.  Rep.  351),  577,  579,  601 
Owings  V.  Emery  (6  Gill.  260),  285 
Oxenden   v.    Compton    ( 2   Ves.   69 ) , 

279 


Packer  v.  Noble    (103  Pa.  St.  188), 

211 
Packham    v.    German    Fire    Ins.    Co. 

(91  Md.  515;  46  Atl.  Rep.   1066; 

50  L.  R.  A.  828),  827 
Page  V.  Culver    (55  Mo.  App.  606), 

229 
Paine  v.  Griffiths   (86  Fed.  Rep.  452; 

58   U.    S.   App.   38;    30   C.    C.    A. 

182),   69,   168 
Palestine  Water,  etc.,   Co.  v.   Pales- 
tine  (91  Tex.  540;  44  S.  W.  Rep. 

814),  520,  522,  531,  539,  540 


Palmer    v.    Edwards     (Doug.    187), 

246 
Palmer  v.  Larchmont,  etc.,  Co.    (su- 
pra), 548 
Palmer  v.  Truby    (136  Pa.  St.  556; 

20  Atl.   Rep.    516),    52,    140,    198, 

220 
Palmer    v.    Uncas    Mining    Co.     ( 70 

Cal.  014;    11   Pac.  Rep.  666),  357 
Palmer  Oil  &  Gas  Co.  v.  Parish    (6 

Kan.     611;     59    Pac.    Rep.    640), 

284 
Paola   Gas   Co.    v.    Paola   Glass   Co. 

(50  Kan.  614;  44  Pac.  Rep.  621), 

591 
Parfitt    V.    Ferguson     (159    N.    Y. 

Ill;  53  N.  E.  Rep.  707,  affirming 

38  N.  Y.  Supp.  466 ;  3  N.  \'.  App. 

Div.  176),  457,  492 
Parfit  V.  Furguson   (38  N.  Y.  Supp. 

466;   3  N.  Y.   App.  Div.   176;    73 

N.   Y'.   St.  Rep.  621,  affirmed   159 

N.    Y.    Ill;    53    N.    E.    707).   454, 

510,   542 
Paris  V.  Norway  Water  Co.   (85  Me. 

330;   27  Atl.  Rep.  143),  833 
Parish  Fork  Oil  Co.  v.  Bridgewater 

Gas  Co.   (51  W.  Va.  583;  42  S.  E. 

Rep.   655),  79,  98,   114,   129,   145, 

170,  172,  182,   197,  198.   200.  206, 

207,  210,  215,  217 
Park  Comrs.  v.  Common  Council  (28 

Mich.  228),  489,  564 
Parker  Land  &  Oil   Co.  v.  Reddick 
(18  Ind.  App.  616;  47  N.  E.  Rep. 

848),  355,   356,   629,  644 
Parkersburg    Gas    Co.    v.    Parkers- 
burg  ( 30  W.  Va.  435 ;  4  S.  E.  Rep. 

650),  480,  488,  489,  528 
Parkin  v.  Wirksworth  Gas  Co.    (26 

Gas  J.  946),  720,  749 
Parlin,    etc.,    Co.   v.    Finfrouck    (65 

111.  App.   174),  759 
Parry  v.  Croydon  Gas  Co.    (15  C.  B. 
(N.    S.)    568;    11    C.    B.    (N.    S. ) 

578;   10  Jur.    (N.  S.)   172;  9  L.  T. 
(N.  S.)   694;   12  W.  R.  212),  652, 

672,  676 


TABLE   OF   CASES. 


Ixxxv 


(References  are  to  pages.) 


Parry  v.  Lmith   (L.  R.  4  C.  P.  325; 

33  Gas  J.  899),  682,  747,  755 
Parsell  v.  Strvker    (41  X.  Y.  480), 

328 
Parsons    v.     District    of    Columbia 

(170  U.   S.  45;    18  Sup.    Ct.  Rep. 

521).  470 
Patterson   v.    Gaslight   &    Coke   Co. 

([1896]    2  Ch.  476;   65  L.  J.  Ch. 

(N.  S.)    709;   74  L.  T.  Rep.  640), 

608 
Patterson  v.  Hausbeck  (8  Pa.  Super. 

Ct.  Rep.  36),  221 
Patterson    v.    Kentucky     (11    Bush. 

311;   21  Amer.  Rep.  220),  418 
Patterson   v.    Kentucky     (97    U.    fe'. 

501),  418 
Patterson   v.    People's   Natural   Gas 

Co.    (172  Pa.   St.  554;   26  Pittsb. 

L.  J.    (N.  S.)    260;   37  W.  N.  C. 

422;  33  Atl.  Pep.  575),  392,  393 
Patterson    Gaslight    Co.    v.    Brady 

(27    N.   J.   L.   245;    72   Am.   Dec. 

360),  575 
Patton  V.  Axley  (5  Jones  L.   (N.  C.) 

440),  71,  74 
Patrick    v,    Weston     (22    Colo.    45; 

43   Pac.   Rep.   446),   351 
Paul  V.  Cragnas    (25   Nev.  293;   59 

Pac.  Rep.  857;   60  Pac.  Rep.  983; 

47  L.  R.  A.  540),  79 
Paul  V.  Travelers'  Ins.  Co.    (112  N. 

Y.   472;    20    N.   E.   Rep.   347,   af- 
firming 45  Hun  313),  828,  830 
Pearce  v.  Bridgewater  Gas  Co.    (28 

Pittsb.  L.  J.   (N.  S.)    171),  257 
Pearce  v.  Gardner    ([1897]    1   Q.  B. 

688;  66  L.  J.  Q.  B.  457;  76  L.  T. 

441;   45  W.  R.   518),   314 
Pearcy    v.    Henley     (82    Ind.     129), 

282 
Pearson  v.  Phoenix  Gas  Co.   (12  Gas 

J.  69),   577,   607 
Peatman    v.    Centreville,    etc.,    Co. 

(105  la.  1;   74  N.  W.  Rep.  #69), 

361 
Peck  V.  Trinsmaran  Co.   (2  Ch.  Div. 

115;  24  W.  R.  361),  372,  377 


Peerrin  v.  Lepper    (34  Mich.   292), 

229 
Peers  v.   Consolidated  Coal  Co.    (59 

111.  App.  595),  257 
Pelton  V.  Minah,  etc.,  Co.   (11  Mont. 

281;   28  Pac.  Rep.  310),  359 
Pendergast  v.  Turton   (13  L.  J.  Ch. 

268;    5    Jur.    1102;    8   Jur.    205), 

314,  358 
Penn  Gas  Coal  Co.  v.  Versailles  Fuel 

Gas  Co.    (131  Pa.  St.  522;  19  Atl. 

Rep.  933),   397 
Penn    Iron    Co.    v.    Lancaster     (17 

Lane.    L.    Rev.     161),    604,    609, 

610,  612 
Penn.  Mut.  Life  Ins.  Co.  v.  Thack- 

ara    (10   Wkly.    W.   N.    C.    (Pa.) 

104;    11   Wkly.  W.  N.  C.  391;    13 

Reporter   731),  6.32 
Pennington  v.  Brinsop  Coal  Co.    (5 

Ch.  769;  46  L.  J.  Ch.  773;   37  L. 

T.  149;  25  W.  R.  874),  653,  674 
Pennsylvania  Co.  v.  Langendorf   (48 

Ohio  St.  316;  28  X.  E.  Rep.  172; 

13  L.  R.  A.   190),  780 
Pennsylvania  Coal  Co.  v.  Sanderson 

(113  Pa.  St.  126;  6  Atl.  Rep.  453; 

86  Pa.  St.  401;   94  Pa.  St.  302), 

657,  661 
Pennsylvania    Gas    Co.    v.    Warren 

Gas    Co.    (3   Pa.   Dist.   Rep.   67), 

615,  620 
Pennsylvania     Globe     Gas     Co.     v. 

Scranton    (97   Pa.   St.   538),   457, 

530 
Pennsylvania  Ins.  Co.  v.  Faires   ( 13 

Tex.  Civ.  App.  Ill;  35  S.  W.  Rep. 

55),  797,  801 
Pennsylvania   Salt  Co.   v.   Xeel    (54 

Pa.  St.  9),  77,  285 
Penny   v.    Rosendale,   etc.,    Co.    (14 

Gas  J.  927),  609 
Pennville,   etc.,   Co.    v.    Thomas    (21 

Ind.  App.  1;  51  X.  E.  Rep.  351), 

346 
Pensacola    Gas    Co.    v.    Pebley     (25 

Fla.  381;  5  So.  Rep.  593),  651 


Ixxxvi 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Pensacola  Gas  Co.  v.  Pensacola    (33 

Fla.  322;    14  So.  Rep.  826),  474, 

524 
Penton  v.  Robart   (2  East.  88),  646 
People  V.  Assessors  of  Brooklyn   (76 

N.  Y.   202;    16  Hun  196),   834 
People  V.  Assessors  of  Brooklyn    (6 

N.  Y.  Trans.  App.   116),  832 
People    V.    Brooklyn   Assessors     (19 

N.   Y.   App.   Div.   599;    46    X.   Y. 

Siipp.  388 ) ,  838 
People  V.   Bovven    (30  Barb.  24,   af- 
firmed  21    N.   Y.   517),   498,   534, 

540 
People   V.   Budd    (117   X.   Y.   1;    22 

X.  E.  Rep.  682;   5  L.  R.  A.  559; 

15  Am.  «t.  Rep.  460),  618 
People    V.    Chicago    Gas    Trust    Co. 

(130  111.  268;  22  X.  E.  Rep.  798; 

8  L.  R.  A.  497;  29  Am.  and  Eng. 

Corp.    Cas.    257),    420,    422,    434, 

531,    576 
People  V.  Deehan    (153  N.   Y.   528; 

47   X.   E.   Rep.   787,   reversing   11 

X.   Y.   App.    Div.    175;    42   X.    Y. 

Supp.   1071),  443,   463,   521,   522, 

524,  526,  527,  535,  538 
People   V.   Deehan    (11    X.   Y.    App. 

Div.    175;   42  X.  Y.   Supp.   1071; 

reversed  153  X.  Y.  528;  47  X.  E. 

Rep.  787),  536 
People  V.   Gilroy    (67   Hun  323;   22 

X.  Y.  Supp.  271),  518 
People  V.  Gleason    (121  X.  Y.  631; 

25  X.  E.  Rep.  4),  455 
People   V.   Gold   Run,   etc.,   Co.    (66 

Cal.  138;  4  Pac.  Rep.  1152),  654 
People  V.  Kent    (12  Xat.  Corp.  Rep. 

(111.)     193),   422,   538 
People  V.  Kingman   ( 24  X.  Y.  559 ) , 

512 
People  V.  Lake  Eric,  etc.,   Co.    (167 

111.  283;  47  X.  E.  Rep.  518),  470 
People   V.   Manhattan   Gas   Co.    (45 

Barb.    136;    1    Abb.    Pr.    (X.    S.) 

404;   30  How.   Pr.   87),   577,  585, 

586,    607,    610 


People    V.    Martin     (48    Hun    193), 

833,    834 
People  V.  Mutual  Gaslight  Co.    (38 

Mich.  154),  520,  540 
People  V.  X.  Y.,  etc.,  Co.   (56  X.  Y. 

Supp.  364),  577,   586 
People  V.  Xew   York,   etc.,   Co.    (64 

Barb.  55;  6  Lans.  467).  664,  672, 

676 
People  V.  O'Brien   (111  X.  Y.  *l ;   18 

X.  E.  Rep.  692),  522.  535 
People   V,    Pacheco     (27    Cal.    175), 

450 
People  V.   Rice    (138  X.  Y.   151;   33 

X.  E.  Rep.  846),  842 
People  V.  Ridgely  (21  III.  65),  519 
People    V.    San    Francisco    (11    Cal. 

42),   471 
People   V.    San    Francisco     ( 54    Cal. 

248),  549 
People  V.    Steele    (56   X.   Y.   664;    1 

Sheldon  345).  834 
People   V.    Stephens    (62   Cal.   209), 

421 
People  V.  Van  Rensselaer    (8   Barb. 

189),  251 
People  V.  Wilber    (4  Park.  Cr.  Rep. 

19),   843 
People  V.   Williams    (35    Cal.   671), 

42 
People's    Gaslight    Co.    v.    Amphlctt 

(93  111.  App.  194),  701,  723,  745, 

753 
People's  Gaslight  &  Coke  Co.  v.  Chi- 
cago   (114    Fed.    Rep.    384),   428, 

433,  439,  444 
People's    Gaslight    &    Coke    Co.    v. 

Plale   (94  111.  App.  406),  428,  429, 

432,  434,  436,   522,  536,  538,  577, 

578,    597,    600 
People's  Gas  Co.  v.  Tyner   (131  Ind. 

277;  31  X.  E.  Rep.  59;  16  L.  R.  A. 

443),   32,  33,  34,    39,  45,  48,   119, 

136,  775 
People'sXatural  Gas  Co.  v.  Fidelity, 

etc.,  Co.    (150  Pa.   St.  8;   24  Atl. 

Rep.  339),  827 


TABLE   OF   CASES. 


Ixxxvii 


(References  are  to  pages.) 


People's   Natural  Gas  Co.  v.   Pitts- 
burgh   (1   Penn.  C.  C.  Rep.  311), 

483 
Peoria,  etc.,   Ins.  Co.  v.  Downs    (90 

Ky.  -SSG;    13  S.  W.  Rep.  882;    12 

Ky.  L.  Rep.   115),  823 
Pereria   v.   Wallace    (129   Cal.   397; 

62  Pac.  Rep.  61),  456 
Perley  v.   Chandler    (6  Mass.  453), 

333 
Peter  v.  Barnes    (16  Ind.  219),  112 
Pettibone    v.    Smith     (150    Pa.    St. 

118;   24  Atl.  Rep.  693),  840 
Pettis    V.    Johnson     (56    Ind.    139), 

514 
Petroleum  Co.  v.  Coal,  etc.,  Co.   (89 

Tenn.    381;    18    S.   W.   Rep.    65), 

68,  90.  130,  132 
Peyton  v.  Texa.s  &  Pacific  Ry.    (41 

La.    Ann.   861;    6   So.    Rep.    690), 

780 
Pfeiffer  v.  Brown   (165  Pa.  St.  267; 

30  Atl.  Rep.  844),  658 
Philadelphia    v.    Flanigen     (47    Pa. 

St.  21),  469 
Philadelphia    v.    Fox     (64    Pa.    St. 

169),  446 
Philadelphia    v.    Hays    (93    Pa.    St. 

72).   474 
Philadelphia  Gas  Works   Co.,  In  re 

(1  Dauph.  Co.  Rep.  55),  482,  483, 

530 
Philadelphia  Co.  v.  Central  Traction 

Co.  ( 165  Pa.  St.  456 ;  30  Atl.  Rep. 

934),  755 
Philadelphia    Co.    v.    Freeport    ( 167 

Pa.    St.    27;    31    Atl.    Rep.    571), 

513.  515 
Philadelphia  Gas  Co.  v.  Park  Bros. 

(138    Pa.    St.    346;    22    Atl.    Rep. 

86),  530,  597,  599,  603 
Philbrick  v.  Ewing  (97  Mass.  133), 

636,   649 
Phillips  V.  Coast    (130  Pa.  St.  9(12; 

18  Atl.  Rep.  998),  142 
Phillips  V.  Vandergrift   (146  Pa.  St. 

357;   23  Atl.  Rep.  347),  183,  267 


Phoenix  Gaslight,   etc.,   Co.   v.   Shil- 

lits    (19  Gas  -J.  848),  843 
Phoenix,  etc.,  Co.  v.  Dfethick   ( 14  Gas 

J.  536),  754 
Phoenix   Ins.    Co.    v.    Erie,   etc.,    Co. 

(117   U.  S.  312;   6  Sup.   Ct.  Rep. 

750,  1176),  827 
Phoenix   Ins.   Co.   v.   Flemming    (65 

Ark.  54;   44  S.   W.   Rep.  464;    39 

L.  R.  A.  789),  795,  818 
Phoenix  Ins.  Co.  v.  Greer    (61  Ark. 

509;    33    S.   W.   Rep.   840),  805 
Phoenix    Ins.    Co.    v.    Lawrence     (4 

Mete.   (Ky.)  9;  81  Am.  Dec.  521), 

826 
Phoenix,  etc.,  Co.  v.  Hunger    (49  S. 

W.   Rep.    (Tex.   Civ.   App.)    271), 

801 
Phoenix    Ins.   Co.   v.    Shearman    (17 

Tex.    Civ.    App.    456;    43    S.    W. 

Rep.  930,  1063),  797,  800 
Phoenix  Ins.  Co.  v.  Taylor   (5  Minn. 

492),  812 
Pickett    v.    Pacific,    etc.,    Ins.    Co. 

(144    Pa.    St.    79;    22    Atl.    Rep. 

871),  829,  830 
Pierce   v.    George     (108    Mass.    78), 

631 
Pifer    v.    Brown    (43    W.    Va.    412; 

27   S.  E.   Rep.    399;   49   L.  R.   A. 

497),  82 
Pilcher    v.    Atchison,    etc.,    Ry.    Co. 

(38  Kan.  516;   16  Pac.  Rep.  945), 

284 
Pine  Bluff,  etc.,  Co.  v.  Derreuisseaux 

(56  Ark.  132;  19  S.  W.  Rep.  428), 

788 
Pine  Bluff,  etc.,  Co.  v.  McCain    (62 

Ark.    118;    34    S.   W.    Rep.    549), 

685.  692.  710,  730 
Pine    Bluff,    etc.,    Co.    v.    Schneider 

(62    Ark.    109;     34    S.    W.    Rep. 

.547;   33  L.  R.  A.  366),  706,  709, 

710,  712,  745,  746,  747,  750 
Pingree    v.    Mutual    Gas    Co.     (107 

Mich.  156;  65  N.  W.  Rep.  6),  604 
Pingrey   v.    Watkins    (15   Vt.   479), 

246 


Ixxxviii 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Piru  Oil  Co.   (\G  Lan.  Dec.  117),  32, 

55 
Pittsburg,   etc.,   Co.,  In  re    (16   Pa. 

Co.  Ct.  Rep.  433),  481,  483 
Pittsburg's  Appeal    (115  Pa.   St.  4; 

7   Atl.   Rep.    778),   427,   514,   525, 

531,    532 
Pittsburg's    Appeal     (123     Pa.     St. 

374;    16  Atl.  Rep.  621),  838 
Pittsburg,  etc.,  Co.  v.  Lake  Superior 

Iron   Co.    (118   Mich.   109;    76  N. 

W.  Rep.  395),  334 
Pittsburg    Carbon    Co.    v.    Philadel- 
phia   Co.     (130    Pa.    St.    438;    18 

Atl.  Rep.  732),  459,  503,  572 
Pittsburg  Gas  Co.  v.  Pittsburg   (101 

U.  S.  219),  474 
Pittsburg   Consolidated   Coal   Co.   v. 

Greenlee     (164    Pa.    St.    549;    30 

Atl.   Rep.  489),  276 
Planters',  etc.,   Ins.  Co.  v.  Rowland 

(66   Md.   236;    7   Atl.   Rep.    257), 

809 
Plonk   V.   Jessop    (178   Pa.    St.    71; 

27  Pittsb.  L.  J.    (N.  S.)    162;   39 

W.  N.  C.   156;  35  Atl.  Rep.  851), 

746 
Plummer  v.  Hillside,  etc.,  Co.    (160 

Pa.  St.  483;  28  Atl.  Rep.  853),  62, 

78,  150,  206,  321 
Pocatello  Water  Co.  v.  Standley    (61 

Pae.  Rep.   (Idaho)   518),  434,  542, 

594,  616 
Pocock  V.  Brighton  (31  Gas  J.  429), 

716,  722 
Pool  V.  Milwaukee,  etc.,  Ins.  Co.   (91 

Wis.    530;    65    N.    W.    Rep.    54), 

808 
Poole  V.  Middleton    (29   Beav.   640; 

9    Jur.     (N.    S.)     1262;    4    L.    T. 

631;  9  W.  R.  758),  352 
Poolcy  V.  Whitmore  (10  Heisk.  629; 

27  Am.  Rep.   733),  348 
Porquay  Gas  Co.  v.  Carter   (32  Gas 

J.  490),  587 
Port   V.    Jackson    (17    Johns.    239), 

235 


Porter  v.   Noyes    (47   Mich.   35;    K) 

N.  W.  Rep.  77),  163 
Portland  Natural  Gas  Co.  v.  State 

(135  Ind.  54;  34  N.  E.  Rep.  818; 

21  L.  R.  A.  639),   576,  578,   579, 

581,  585,  594,  596 
Post  V.  Kearney   (2  X.  Y.  394),  246 
Postal    Telegraph    &    Cable    Co.    v. 

Eaton    (170    111.    513;    49    N.    E. 

Rep.  365),  549 
Potter  V.  Gilbert    (177  Pa.  St.  159; 

35   Atl.    Rep.    597;    35    L.    R.    A. 

580),  640 
Potter  V.  Natural  Gas  Co.    ( 183  Pa. 

St.  575;  39  Atl.  Rep.  7),  789 
Potter  V.  Cromwell    (40  N.  Y.  287), 

629 
Potter ie    Gas    Co.    v.    Potter ie    (153 

Pa.    St.    10;    25    Atl.    Rep.    1107; 

179  Pa.  St.  68;  36  Atl.  Rep.  232), 

200,   210 
Poterie  Gas  Co.  v.  Poterie   (179  Pa. 

St.    68;    30   Atl.   Rep.   232),    120, 

254 
Pottstown  Gas   Co.   v.   Murphy    (39 

Pa.   St.  257),   651,   664,   666,   667, 

672 
Poughkeepsie    Gas    Co.    v.    Citizens' 

Gas  Co.    (20  Hun  214),  616,   637 
Powell   V.   Aikin    (4    K.   &   J.    343), 

49 
Powell  V.  Elliott  (L.  R.  10  Cli.  App. 

424;  33  L.  T.  110;  23  W.  R.  777), 

319 
Powell  V.  Lantzy   (173  Pa.  St.  543; 

34  Atl.  Rep.  450),  78,  840 
Powell  V.  Thomas    (0  Ha.  300),  315 
Powell    Duffiyn    Coal    Co.    v.    Taft" 

Vale  Rail  Co.    (L.  R.  9   Ch.  App. 

331;    43  L.   J.   Ch.   575;    30  L.  T. 

208),  318 
Power  V.  Athens    (99   N.  Y.   592;    2 

N.  E.  Rep.  609),  496 
Powers  V.  Boston  Gaslight  Co.    (158 

Mass.   257;    33   N.   E.   Rep.   523), 

710,  719,  756 


TABLE   OF   CASES. 


Ixxxix 


(Reffciences  are  to  pages.) 


Prattlp  V.  Hornibrook   ([1897]   1  Ch. 

25;    66    L.   J.   Ch.    144;    75   L.   T. 

475;   45  W.  R.    123).   316 
Preston  v.  Hayton,  etc.,  Gas  Co.   (25 

Gas  J.  889),  605,  620,  623 
Prentice  v.  Janssen  (79  N.  Y.  478), 

308 
Presidio   Mining   Co.   v.   BuUis    (68 

Tex.  581;  4  S.  W.  Rep.  800),  87, 

93,  284 
Price    V.    Griffith     (DeG.    M.    &    G. 

80;  21  L.  J.  Ch.  78;  15  Jur.  1093; 

18  L.  T.  (0.  S.)  190),  318 
Price  V.  Malott   (85  Ind.  266),   6S0 
Price    V.    South,    etc..    Gas    Co.    (65 

L.  J.  Q.  B.  126;   12  T.  L.  R.  31), 

718 
Priehard  v.  Consolidated  Gas  Co.   (2 

Pa.  Super.  Ct.  179;   39  W.  N.   C. 

28),  766 
Priddy  v.  Griffith   (150  111.  560;  37 

N.  E.  Rep.  999),  287,  288,  289 
Pritchard  v.  Consolidated  Gas  Co.  (2 

Pa.  Super.  Ct.   179;   39  W.  N.  C. 

28),  706 
Providence  Gas   Co.  v.    Thurber    (2 

R.  I.  15;   55  Am.  Dec.  621),  520, 

548,  833 
Pryor,  In  re   (55  Kan.  724;  41  Pac. 

Rep.  958;  29  L.  R.  A.  398;' 49 

Am.  St.  Rep.  280;  12  Am.  R.  and 

Corp.  Rep.  364),  421,  424,  460 
Pudsey   Coal    Gas    Co.   v.    Bradford 

(L.  R.  15  Eq.  167;  21  W.  R.  286; 

42  L.  J.  Ch.  293;  22  Gas  J.  54), 

576 
Pullman   v.   Mayor    (49    Barb.    57), 

469 
Pullman    Palace    Car    Co.    v.    Laack 

(143  111.  242;  32  N.  E.  Rep.  285; 
.    18  L.  R.  A.  215,  affirming  41   111. 

App.  34),  693,  721,  736.  775 
Putnam  v.  Commonwealth  Ins.^o. 

(4   Fed.  Rep.   753),   798 
Putnam  Insurance  Co.    (18  Blatchf. 

368;   4  Fed.  Rep.   753),  813 


Q 


Quarryville  Water  Co.  v.  Fritz   (14 

Lane.   L.  Rev.   186),  395 
Queen  v.  Firth   (L.  R.  1  Crown  Cas. 

Res.  172),  843 
Queen     City,    etc.,     Co.    v.     Gibson 

House  Co.    (4  Ohio  N.   P.   119;   6 

Ohio  Dec.   148),   614 
Queen's  Ins.  Co.  v.  Harris   (2  Wkly. 

N.  C.    (Pa.)   220),  823 
Queen  Ins.   Co.  v.  Sinclair    (1   Ohio 

Cir.  Ct.  Rep.  496),  796 
Quincy  v.  Bull   (100  111.  337;  4  Am, 

and  Eng.   Corp.  Cas.  554),  548 
Quinn  v.  Quinn  (81  Cal,  14;  22  Pac. 

Rep.   264),    339 

R 

Railroad    Co.    v.    Railroad    Co.    (32 

Barb.  358,  364),  522 
Railroad  Co.  v.  Sanderson   (109  Pa. 

St.    583),   369 
Rainey  v.  Frick  Coke  Co.    (73  Fed. 

Rep.  389),  298 
Ramsey  v.  White    (21   Pittsb.  L.  J. 

(N.  S.)    425).   187 
Ranck  v.  Cedar  Rapids  Gas  Co.  (116 

la.  — ;    89    N.  W.   Rep.  88),   729, 

730 
Rand  v.   Venture   Oil   Co.    (48   Fed. 

Rep.   248),  397 
Randall  v.   Merideth    (76  Tex.  669; 

13  S.  W.  Rep.  576),  340,  348 
Ransberry  v.  Kellar    (9  Pa.  Co.  Ct. 

Rep.   299),   515 
Rankin's    Appeal     (1    Mong.     (Pa.) 

308;  2  L.  R.  A.  429),  290,  294 
Rapson  v.  Cubitt    (9  Mess.  &  Wels. 

710;   C.  &  M.  64),   754 
Rara    Avis'    Gold   &    Silver   Mining 

Co.    V.    Bouscher     (9    Colo.    385; 

12  Pac.  Rep.  433),  357 
Ratsberry  v.  Keller    (9  Pa.  Co.   Ct. 

Rep.  299),  513 
Rau    V.    Winchester    Fire    Ins.    Co. 

(36    N.    Y.    App.    Div.    179;     55 

N.  Y.  Supp.  459),  814 


TABLE   OF   CASES, 


(References  are  to  jiages.) 


Rawlings  v.  New  Memphis,  etc..  Co. 

(105   Tenn.   2G8;    60   S.   W.    Rep. 

206),  361,  363 
Ray  V.   Natural   Gas  Co.    (138    Pa. 

St.    576;    20   Atl.   Rep.    1065;    12 

L.  R.  A.  290),  121,  166,  168,  185, 

187,   188,   222 
Ray  V.  Western,  etc.,  Gas  Co.    (138 

Pa.   St.   576;   20  Atl.  Rep.   1065; 

12   L.    R.   A.   290;    27    W.   N.    C. 

230),  183,  193,  224,  266 
Raymond    v.    Johnson     (17    Wash. 

232;  49  Pac.  Rep.  492),  83 
Raynolds  v.   Hanna    (55   Fed.    Rep. 

783),  76 
Read  v.  Beck   (66  la.  21;  23  N.  W. 

Rep.   159),  162 
Reading  v.   Consumers'  Gas   Co.    (2 

Del.  Co.  Rep.    (Pa.)   437),  531 
Reagan  v.  Farmers'  Loan,  etc.,  Co. 

(154  U.  S.  362),  431 
Reaper  City  Ins.   Co.  v.   Jones    (62 

111.  458),  822 
Redlands    Domestic    Water    Co.    v. 

Redlands    (120  Cal.  312;   53  Pac. 

Rep.  843),  432 
Red   Star   S.   S.   Co.  v.   Jersey   City 

(45  N.  J.  L.  246),  619 
Reed  v.   Reed    (16  N.   J.   Eq.   248), 

287 
Reeve   v.    Whitmore    (33   L.   J.    Ch. 

63),  646 
Reeves    v.    Corning     (51    Fed.    Rep. 

74),  174 
Regina  v.  Birmingham  Gas  Co.    (1 

B.  &  C.  506),  649 

Regina  v.  Brighton  Gas  Co.   (5  B.  & 

C.  466),  649 

Regina  v.  Colne  Valley  Gas  Co.   (29 

Gas  J.  498,  781;  30  Gas.  J.  218), 

543 
Regina  v.  Inhabitants  of  Lee   (L.  R. 

1  Q.  B.  241;   35  L.  J.  M.  C.  105; 

12   Jur.    (N.    S.)    225;     13   L.   T. 

(N.  S.  704;   14  W.  R.  311),  632, 

633 
Regina  v.  Jenkins    (5  Gas  J.  214), 

843 


Regina  v.  Lee    (L.  R.  1   Q.  B.  241; 

35  L.  J.  Mc.  105;  12  Jur.   (N.  S.) 

225;  13  L.  T.   (N.  S.)   704;  14  W. 

R.  311),  833 
Regina  v.  Longton  Gas  Co.    (2  Ell. 

&  Ell.  651;  2  L.  T.    (N.  S.   14;  8 

Cox   C.   C.    317;    29   L.   J.   M.   C. 

118;  8  Gas  J.  165;  9  Gas  J.  114; 

6  Jur.  (N.  S.)  601;  8  W.  R.  293), 

543 
Regina  v.  Mile  End  Old  Town    (10 

Q.  B.  208;    3  New  Sess.  Cas.  13; 

16  L.  J.   Mc.   184;    11   Jur.  985), 

833 
Regina  v.  Mitchell   (22  Gas  J.  137), 

843 
Regina  v.  Rockdale   W.   W.   Co.    (1 

M.  &  S.  634),  649 
Regina     v.     Sheffield     Consolidated 

Gaslight  Co.   (32  L.  J.  M.  C.'16S; 

4   B.   &    S.    135;    9   Jur.    (N.   S.) 

623;   8  L.  T.    (N.  S.)    692;   11   W. 

R.    1064),   833 
Regina  v.   Sheffield  Gas  Consumers' 

Co.    (18  Jur.  146,  note),  542 
Regina    v.    West    Middlesex    Water 

Works   Co.    (1   E.   &   E.   716;    28 

L.  J.  M.  C.   135;   5  Jur.    (N.   S.) 

1159),   699,   833 
Regina  v.   White    (20   E.  L.    &   Eq. 

585;  17  Jur.  536;  3  C.  &  K.  363; 

6  Cox  Cr.  Cas.  213;  Dears.  C.  C. 

203;  22  L.  J.   (N.  S.)    123),  843 
Reid  v.  Parsons    (2  Chit.  247),  180 
Reiss  V.  Stearn  Co.   (128  N.  Y.  103; 

28  N.  E.  Rep.  24),  701,  702 
Renshaw  v.  Missouri,  etc.,  Ins.  Co. 

(33  Mo.  App.  394;   103  Mo.  595; 

15  S.  W.  Rep.  945).  803 
Renshaw  v.  Missouri,  etc.,   Ins.  Co. 

(103    Mo.    595;    15    S.    W.    Rep. 

945;   23  Am.   St.  Rep.  204),  812, 

815 
Rex  V.  Medley  (6  C.  &  P.  292),  652, 

654,  658,  667,  676 
Reynolds  v.  Cook    (83  Va.   817;    13 

S.   L.   Rep.  710),   106 


TABLE  OF  CASES. 


(References  are  to  pages.) 


Reynolds  v.  Hanna  (55  Fed.  Rep. 
783),  290,  291 

Rhea  v.  Tathem  (1  Jones  Eq.  290 J, 
310 

Rhea  v.  Vannoy  ( 1  Jones  Eq.  282 ) , 
310 

Rhoades  v.  Patrick  (27  Pa.  St.  323), 
42 

Rhodes  v.  Thomas  (2  Ind.  638), 
172 

Ricard  V.  Sanderson  (41  N.  Y.  179), 
102 

Rice  V.  Ege  (42  Fed.  Rep.  661),  48, 
102,  134 

Richards  v.  Dover  (N.  J.  L.)  (39 
Atl.  Rep.   705),  842 

Richards  v.  Killam  (10  Mass.  239), 
277 

Richards  v.  Protection  Ins.  Co.  (30 
Mo.   273),   807 

Richardson  Ins.  Co.  (46  Fed.  Rep. 
843),  830 

Richmond  Gas  Co.,  In  re  ([1893]  1 
Q.  B.  56;  62  L.  J.  Q.  B.  172;  67 
L.  T.  554;  41  W.  R.  41;  56  J.  P.), 
461,  591       . 

Richmond  County  Gaslight  Co.  v. 
Middletown  (59  N.  Y.  228.  af- 
firming 1  T.  &  C.  143),  420,  422, 
446,   471,   489,   585 

Richmond  Gas  Co.  v.  Baker  (146 
Ind.  600;  45  N.  E.  Rep.  1049;  36 
L.  R.  A.  683),  712,  714,  721,  736, 
737,   744 

Richmond  Mfg.  Co.  v.  Atlantic  De- 
Lain  Co.   (10  R.  I.  106),  653 

Richmond  Natural  Gas  Co.  v.  Claw- 
son  (155  Ind.  659;  58  N.  E.  Rep. 
1049;  51  L.  R.  A.  744),  597,  603, 
604 

Richmond  Natural  Gas  Co.  v.  Enter- 
prise Natural  Gas  Co.  (66  N.  E. 
Rep.  (Ind.  App.)  782),  42,  44,  45, 
47,  117,  119,  414  '4 

Ricketts  v.  Bell  (1  DeG.  &  Sm. 
335;  10  L.  T.  105;  11  Jur.  918), 
3i8,   319 


Ricketts  v.  Bennett    (4   C.  B.  686; 

17   L.   J.    (N.    S.)    C.   P.    17;    11 

Jur.  1062),  348 
Rico,    etc.,    Co.    v.    Musgrave     ( 14 

Colo.  79;  23  Pac.  Rep.  458),  353, 

362 
Riddle  v.  Mellon    (147   Pa.   St.   30; 

23  Atl.  Rep.  241),  150,  161,  192 
Rideout  v.   Knox    (148    Mass.   368; 

19  N.  E.  Rep.  390),  48 
Ridgeway  Light,  etc.,  Co.  v.  Elk  Co. 

(191    Pa.    St.    465;    43    Atl.    Rep. 

323),  838,  839 
Rieker  v.   Lancaster    (7   Pa.   Super. 

Ct.  149;  42  W.  N.  C.  160),  599 
Rienker  v.  Lancaster    ( 14  Lane.  L. 

Rev.  393),  483,  573,  580,  581 
Riggan   v.   Green    (80   N.    C.    236), 

280 
Ritchie   v.    McAllister    (14    Pa.    Co. 

Ct.  Rep.  267),  641,  644 
Rivara  v.  Queens  Ins.  Co.   (62  Miss. 

720),  822 
Riverton,  etc.,  Co.  v.  Haig  ( 58  N.  J. 

L.  295;  33  Atl.  Rep.  215),  833 
Roanoke    Gas    Co.   v.    Roanoke    (88 

Va.  810;   14  S.  E.  Rep.  665),  542 
Robb  v.  Carnegie    (145  Pa.  St.  324; 

22  Atl.    Rep     649;    14   L.    R.    A. 
329),   663,  664 

Roberts  v.  Bettman  (45  W.  Va.  143; 

30  S.  E.  Rep.  95),  187,  265,  267 
Roberts   v.    Davey    (4   Barn.   &   Ad. 

664;   1  Nev.  &  M.  443),   182 
Roberts   v.   Eberhart    (1    Kay    148; 

23  L.  J.  Ch.  201;  22  L.  T.  253;  2 
W.  R.  125)    349 

Roberts  v.  Jepson   (4  L.  D.  60),  32, 

55 
Roberts  v.  McFaddin  ( 74  S.  W.  Rep. 
(Tex.  Civ.  App.)   105),  71 
Robert  v.  Sadler   (104  N.  Y.  229;  10 

N.  E.  Rep.  428),  333 
Robertson  v.  Jones   (71  111.  405),  49 
Robbins    v.    Gaffey     (48    Leg.    Int. 

462),  397 
Robinson,  In  re  (28  Tex.  App.  511; 

13  S.  W.  Rep.  786),  418 


TABLE   OF   CASES. 


(References  arc  to  pages.) 


Robinson  v.  C<>al.Co.   (50  Cal.  460), 

654 
Robinson  v.  llurman   (1  Exch.  850; 

18  L.  J.  Exch.  202),  320 
Robinson  v.  Imperial,  etc.,  Co.    (15 

Gas.  J.  883),  789 
Roche    V.    Milwaukee    Gaslight    Co. 

(5  Wis.  55),  473 
Rockebrandt    \.    Madison     (9    Ind. 

App.  227;  36  N.  E.  Rep.  444),  560 
Rockford  Gaslight,  etc.,  Co.  v.  Ernst 

(68  111.  App.  300),  687,  703,  706, 

709,   710,    717,   729 
Rockland  Water  Co.  v.  Camden,  etc.. 

Water  Co.    (80  Me.  544;    15  Atl. 
■     Rep.  785 ) ,  490 
Rockwell   V.   Morgan    (2   Beas.    (N. 

J.  Ct.)  384),  295 
Roe  V.  Columbus,  etc.,  Ins.  Co.    (17 

Mo.  301),  805 
Roehl  V.  Hanmesser   (114  Ind.  311; 

15  N.  E.  Rep.  345),  95 
Rogers,  In  re  (4  Land  Dec.  284),  55 
Rogers  v.  Cox  (96  Ind.  157),  630 
Rogers  v.  Crow   (40  Mo.  91;  93  Am. 

Dec.    299),    632 
Rogers  v.  Eag^e  Fire  Co.   (9  Wend. 

611,    618),    102 
Rogers  v.  Humphreys    (4  Ad.  &  El. 

299),  367 
Rogers   v.    Prattville   Mfg.    Co.    (81 

Ala.  483;   1  So.  Rep.  643),  636 
Rogers   Park   Water   Co.   v.   Fergus 

178  111.  571;  53  N.  E.  Rep.  363), 

433,  436 
Rogers   Park   Water   Co.   v.   Fergus 

(180   U.   S.   624;    21    S.   Ct.   Rep. 

490,  affirming  178  111.  571;  53  N. 

E.  Rep.   563).   439,  444 
Rollins  V.  Rilev   (44  N.  H.  9),  199 
Rover    Iron    Co.    v.    Trout    (83    Va. 

397;   2  S.  E.  Rep.  713),  70,   146, 

166 
Rose  V.   Stephens,   etc..   Transporta- 
tion  Co.     (11    Fed.    Rep.    438;    20 

Blatchf.  4K).   701,   702 


Rosenheimer    v.    Standard    Gaslight 

Co.    (36  N.  Y    App.  Div.  1;   55  N. 

Y.  Supp.  192).  664,  672 
Rosenquist    v.    Canary     (15    N.    Y. 

Misc.    148;    ;i6   N.   \\    Supp.   979; 

72  N.  Y.  St.  Rep.  422),  211 
Roseville  Alta  Mining  Co.   v.   Iowa 

Gulch  Mining  Co.    (15   Colo.   29; 

24  Pac.  Rep.  920),  642,  644 
Ross  V.  Campbell   (9  Colo.  App.  38; 

47  Pac.  Rep.  465),  638 
Ross  V.  Schneider  (30  Ind.  423),  112 
Rossi  ter    v.    Miller     (3    App.    Cas. 

1124;    48  L.   J.   Ch.   10;    39  L.  T. 

173;  26  W.  R.  865),  314,  316 
Routledge  v.   Grant    (4   Ring.   660), 

316 
Rowe  V.  Wood   (1  J.  &  W.  555),  371 

372,   374,   377 
Rowell    V.    Bodfish     (10    Atl.    Rep. 

(Me.)    448).   76 
RuflFatti   V.    Societe,    etc.    (10   Utah 

386;   37   Pac.  Rep.  591),   79 
Rushville  Gas  Co.  v.  Rushville   (121 

Ind.  206;   23  N.  E.  Rep.  72),  560 
Rushville  v.  Rushville  Natural  Gas 

Co.   (132  Ind.  575;  58  N.  E.  Rep. 

853;   15  L.  R.  A.  321;   43  Am.  & 

Eng.  Corp.  Cas.  483),  427,  488 
Russell  V.  Maruifacturer's,  etc.,  Ins. 

Co.    (50  Min.  409;  52  N.  W.  Rep. 

906),   795,   819 
Russell    V.    Stratton     (201    Pa.    St. 

277;   50  Atl.  Rep.  975),  166 
Russen  v.  Wanser   (53  Md.  92),  367 
Rutland  v.  Gic    (1  Sid.   152;   1  Lev. 

107),  287 
Ryall   V.   Rolle    (1    Atk.    175),   638, 

648 
Ryckman  v.  Gillis   (6  Lans.  79),  328 
Rylands  v.  Fletcher    (L.  R.  3  H.  L. 

330),  685 
Rynd  v.  Rynd  Farm  Oil  Co.   (63  Pa. 

St.  397),  81,  82,  216 


Sackett    v.    Now    Albany     (88    Ind. 
473;  45  Am.  Rep.  467),  450 


TABLE  OF   CASES. 


(References  are  to  pages.) 


Saginaw    Gaslight    Co.    v.    Saginaw 

(28  Fed.  Rep.  529),  488,  489,  505, 

528 
Sale  V.  Lambeit   (L.  R.  18  Eq.  1;  43 

L.  J.  Ch.  470;  22  W.  R.  478),  314 
Saltsburg  Gas  Co.  v.  Saltsburg  (138 

Pa.  St.  250;  27  W.  N.  C.  120;  20 

Atl.  Rep.  844;   10  L.  R.  A.  193), 

467,  472,  600 
Sampson  v.  Giogan    (21   R.  I.   174; 

42    Atl.    Rep.    712;    44    L.    R.    A. 

711),  290 
Samuel  v.  CavdiflF  Gas  Co.    (18  Gas 

J.  192),  601 
Sanders   v.    Rowe    (48    S.    W.    Rep. 

(Ky.)      1083;     20     Ky.     L.     Rep. 

1082),  140 
Sanders  v.  Sharp    (153  Pa.  St.  555; 

25  Atl.  Rep.  524),   171,   184,  226. 

245 
Sanderson  v.  Scranton  (105  Pa.  St. 

469),  62,  77,  839 
Sands  v.  Hughes  (53  N.  Y.  287), 

246 
Sandy  Lake  v.  Sandy  Lake,  etc.,  Co. 

(16  Pa.  Super.  Ct.  234),  460,  464, 

502,  520,  522,  523,  528,  531 
San  Diego  Water  Co.  v.  San  Diego 

(118  Cal.  556;   50  Pac.  Rep.  633; 

38  L.  R.  A.  460;  62  Am.  St.  Rep. 

261),  429,  430,  432,  433 
San  Diego,  etc.,  Co.  v.  Jasper    (110 

Fed.  Rep.  702),  428 
San  Diego,  etc.,  Co.  v.  Ja,sper    (111 

Fed.  Rep.   702),  429 
San    Diego    Land    Co.    v.    National 

City   (174  U    S.  739,  affirming  74 

Fed.  Rep.  79),  430,  431,  433 
San  Francisco  Gas  Co.  v.  San  Fran- 
cisco   (6  Cal.   190),  457 
San  Francisco  Gas  Co.  v.  Saji  Fran- 
cisco   (9  Cal.  453),  446,  462 
San    Francisco    Gas    Co.    v.    Brick- 

wedel  (62  Cal.  641),  469 
San  Joaquin,  etc.,  Co.  v^_Stanislaus 

County   (113  Fed.  Rep.  930),  428 
San  Jose  v.  January   (57  Cal.  614). 

834,  838 


San  Luis  Water  Co.  v.  Estrada  (117 

Cal.  168;  48  Pac.  Rep.  1075),  459, 

527 
Santa    Clara,    etc.,    Assn.    v.    Quick 

Silver  Mining  Co.    (17   Fed.  Rep. 

657),  341 
Santa  Ana  Water  Co.  v.  San  Buena- 
ventura   (56  Fed.  Rep.  339),  422 
Sargent  v.  Robertson   (17  Ind.  App. 

411;  46  N.  K    Rep.  925),  101,  274 
Satterfield  v.  Rowan    (83  Ga.   187; 

9  S.  E.   Rep.  677),  654 
Sattler  v.  Opperman    (30  Pittsb.  L. 

J.    (N.  S.)   205),  640.  644 
Sauvage  v.  English  Gas  Co.  of  Paris 

(4  Gas  J.   136),  749 
Sayers   v.    Hoskinson    (110   Pa.    St. 

473;   1  St.  Rep.  308),  287,  294 
Schaum    v.    Equitable   Gaslight    Co. 

(15  N.  Y.  App.  Div.  74;  44  N.  Y. 

Supp.  284 ) ,  698 
Schaupp  V.  Hukill    (34  W.  Va.  375; 

12  S.  E.  Rep.  501),  193,  201 
Scheizer  v.  Mansfield   ( 14  Colo.  App. 

236;  59  Pa-.  Rep.  843),  359 
Schenck   v.   Olyphant    (181    Pa.    St. 

191;   37  Atl.  Rep.  258),  559 
Schendell   v.    Rogan    (94   Tex.    585; 

63  S.  W.  Rep.  1001),  335 
Schermerhorn  v.  Metropolitan   Gas- 
light Co.    (5  Daly  144),  692,  717, 

7.34,   747 
Schmeer  v.  Gaslight  Co.   ( 147  N.  Y. 

529 ;  42  N.  E.  Rep.  202 ;  30  L.  R. 

A.  653,  reversing  65  Hun  378 ;  26 

N.  Y.  Supp.  1128;  20  N.  Y.  Supp. 

168),  577,  584,  585,  624,  733,  736, 

742,  765 
Schmidt    v.    Gillen    (41    X.   Y.   App. 

Div.    302;    5S    N.   Y.    Supp.    4.58), 

791 
Schooley   v.    Butler   Mining   Co.    (9 

Kulp.    (Pa.)    291),    109 
Schumaker     v.     Sibert      (18     Kan. 

104).   102 
Schi>ylkill   Co.   v.    Citizens'   Gas   Co. 

(148    Pa.    St.    162;    23    Atl.    Rep. 

1055),  838,  839 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Schwede   v.   Heinrich,   etc.,   Co.    (29 

Wash.  — ;  (i'J  Pac.  Rep.  362),  443, 

514,  515,  516 
Scott   V.    Daverport    (34    la.    208), 

468 
Scott  V.  Fritv:   ^51  Pa.  St.  418),  367 
Scott  V.  Manchester  (2  H.  &  N.  204; 

26   L.  J.   EKch.   132,   406;    3  Jur. 

(N.  S.)   590;  5  W.  R.  598),  788 
Scott  V.  Mayor,  etc.,  of  Manchester 

(37  Eng.  L.  &  Eq.  495;  2  H.  &  N. 

204;    26  L.   J.   Exch.   132,  406;    3 

Jur.    (N.  S.)    590;   5  W.  R.  598), 

722 
Scott  V.  Standard  Oil  Co.   (106  Ala. 
.    475;   19  So.   Hep.  71;  31  L.  R.  A. 

374),  844 
Scottish,    etc.,    Co.    v.    Toronto    (24 

Ont.  App.  208),  539 
Scranton  Electric  Light  &  Jleat  Co. 

V.   Scranton,  etc.,  Co.    (3  Pa.  Co. 

Ct.  Rep.  628),  501 
Scriptme    v,    Lowell,    etc.,    Ins.    Co. 

(10  Cush.  356),  803 
Sculcoates  Union  v.  Hull  Dock  Co. 

([1895]   App.   Cas.   137;    64  L.  J. 

M.  C.  49;  71  L.  T.  642;  43  W.  R. 

623;  59  J.  P.  612;  11  R.  74),  833 
Seager  v.   McCable    (92   Mich.   186; 

52  N.  W.  Rep.  299;    16  L.  R.  A. 

247),  287,  291 
Seeger  v.   Pettit    (77   Pa.   St.  437), 

638 
Searle  v.  Abraham    (73  la.  507;   35 

N.  W.  Rep.  612:,  456 
Seavey  v.  Drake  (62  N.  H.  393),  315 
Second  National  Bank  v.  O.  E.  Mer- 
rill  Co.    (69  Wis.   501;    34  N.  W. 

Rep.  514),  639 
Seiders,   etc.,    Co.   v.   Lewis    (7    Pa. 

Dist.    Rep.    278;    21    Pa.    Co.    Ct. 

Rep.  80),  644 
Seiders,  etc.,   Works  v.   Lewis,   etc.. 

Co.   (7  Pa.  Dist.  Rep.  278;  21  Pa. 

Co.  Ct.  Ren.   80),   356 
Selby    V.     Crystal,     etc.,     Gas    Co. 
(30  Beav.  606;   11  Gas  J.  798;  6 

L.  T.  R.  790),  391 


Selby  V.   Crystal,  etc.,   Co.    (4  DeG. 

F.  &  J.  246;   31  L.  J.  Ch.  595;   8 

Jur.   (N.  S.)   830;  6  L.  T.   (N.  S.) 

790;  10  W.  R.  636),  537 
Seton  V.  Slade   (7  Ves.  274),  314 
Settembre  v.  Putnam   ( 30  Cal.  490 ) , 

342 
Sewell  V.  Angerstein    (18  L.  T.    (N. 

S.)    300),  034 
Seward  v.  Liberty  ( 142  Ind.  551 ;  42 

N.  E.  Rep.  39 ) ,  446,  466,  468 
Sewickloy   v.    OJiio   Valley    Gas   Co. 

(154    Pa.    St.    539;    25   Atl.    Rep. 

868),  612 
Sewickley   v.    Ohio   Valley   Gas   Co. 

(6  Pa.  Co.  Ct.  Rep.  99;    1  Mona- 

ghan  97),  52b 
Sewickley    Sch.col    District    v.    Ohio 

Valley  Gas  Co.    (154  Pa.  St.  539; 

25   Atl.   Rep.   868),   424 
Shardlow  v.   Cotterell    (20  Ch.  Div. 

90;    51    L.    J.    Ch.    353;    45   L.   T. 

572;    30  W.   R.   143),   313 
Sharp  V.  Behr   (117  Fed.  R«p.  864), 

107.   122.   1-23 
Sharp    V.    South    OmaJia    (53    Neb. 

700;  74  N.  \V.  Rep.  76),  513,  522, 

534 
Shattuck  V.  Lovejoy    (8  Gray  204), 

247 
Shaw  V.  Jones    (6  Ohio  Dec.  453;  4 

Ohio  N.  P.  372),  570 
Shaw  V.   Lenke    (1   Daly   487).  632 
Shaw  V.  McGregory   (105  Mass.  96), 

348 
Shaw    V.    Partridge    (17    Vt.    626), 

171,  245 
Shaw  V.  Wallace   (25  N.  J.  L.  453), 

74,  285 
Sheafe  v.    People    (87    111.    189;    29 

Am.    Rep.    49),   512 
Sheaffer  v.   SheaiTer    (37    Pa.   525), 

180 
Sheehy  v.  Muskerry    ( 1    H.   L.   Cas. 

576 ;   7  CI.  &  F.   1 ;    1  Macl.  &  R. 

493;   LI.  &  Gt.   Plunk  568).  373, 

379 


TABLE  OF   CASES. 


(.References  are  to  pages.) 


Sheets  v.  Allen   (8-9  Pa.  St.  47),  74 
Sheffield  v.  Sheffield,  etc.  Co.  ( [1898] 

1   Ch.  203;    77  Law  T.  Eep.  616; 

67   L.  J.   Ch.    (N.   S.)    113),   567, 

568 
Sheffield  United  Gas  Co.  v.  Sheffield 

(4  B.  &  S.  135),  649 
Sheffield  United  Gas  Co.  v.  Sheffield 

Consumers'   Co.    (2   Gas  J.   360), 

490 
Sheffield  W.  W.  Co.  v.  Bingham   (L. 

R.  25  Ch.  Div.  443;  48  L.  T.  604; 

52  L.  J.  Ch.  624;  36  Gas  J.  769), 

618.  619 
Sheffield   W.   ^A'.    Co.   v.    Brooks    (8 

Q.   B.   Div.   632;    51   L.   J.   M.   C. 

97;  30  W.  R.  889;  46  J.  P.  548), 

588,  600 
Sheffield  W.  W.  Co.  v.  Carter   (L.  R. 

C  S.  B.  632;  51  L.  J.  M.  C.  97  ;  30 

W.    R.   889;    40   J.    P.    548),    618, 

619 
Sheffield    W.    W.    Co.   v.    Wilkinson 

(4  C.  P.  Div.  410),  588,  607 
Shelbyville     Water     Co.     v.     People 

(140  111.  545;  30  N.  E.  Rep.  678; 

16  L.  R.  A.  505),  832 
Sheller  v.  Shivers   (171  Pa.  St.  569; 

33    Atl.   Rep.   95),    152,   221,   629, 

643 
Shenandoah  Land,  etc..  Co.  v.  Hise 

(92  Va.  238;  28  S..E.  Rep.  303), 

62,    151 
Shepard  v.  Milwaukee  Gaslight  Co. 

(15  Wis.  318;   82  Am.  Dec.  679), 

579,  589,  590,  596 
Shephard  v.  Milwaukee  Gaslight  Co. 

(6   Wis.   53!);    70  Am.  Dec.  479), 

577,  581,  58i,  585,  592,  593,  594, 

595.   596,   601,   621 
Shepher  v.  McCalmont  Oil   Co.    (38 

Hun  37),  42,  63,  190 
Shepherd  v.  Wilwaukee  Gaslight  Co. 

(11    Wis.    234;    15   Wis.    318;    82 

Am.  Dec.  679;   6  Wis.  539),  577, 

593,  594.  596  ^ 

Sherman    v.    Fall    River    Works    Co. 

(5  Allen  213),    651,  674,  682,  695 


Sherman  v.  Fall  River  Iron  Works 

(2  Allen  524;   79  Am.  Dec.  799), 

667,  672,  673,  737,  753 
Shettler    v.    Hartman     ( 1     Pennyp. 

(Pa.)    279),    183 
Sheward  v.  Citizens'  Water  Co.    (90 

Cal.  635;   27  Pac.  Rep.  439),  604 
Shiras  v.  Ewing    (48  Kan.   170;    29 

t'ac.  Rep.  220),  593,  594,  595.  607 
Shireff  v.  Wilks   (1  East  48),  351 
Shoenberger    v.    Equitable    Gas    Co. 

(22   Pittsb.   L.   J.    (N.   S.)    347), 

591 
Shonberger  v.  Lyon  (7  M.  &  S.  184), 

329 
Shoemaker's    Appeal     (106    Pa.    St. 

392),  288,  i!90.  294 
Sholts   Iron  Co.  v.   Inglis    (L.   R.   7 

App.  Ca.s.  518),  662 
Short  V.   Miller    (120   Pa.   St.  470; 

14  Atl.  Rep.  374 ) .  355.  364 
Shuter    v.    Philadelphia     (3    Phila. 

228;   15  Leg.  Int.  333).   651,   722 
Sicardi    v.    Keystone    Oil    Co.     (149 

Pa.    St.    139;    24    Atl.    Rep.    161, 

163),  361,  364 
Sickles   V.    MacLatter    Gaslight   Co. 

(66  How.    Pr.   304,  314;    64  How. 

Pr.  33),  609,  612,  623 
Siebrecht  v.  East  River  Gas  Co.   (21 

N.   Y.   App.    110;   47   N.   Y.   Supp. 

262).  698,  706.  707,  710.  715,  716, 

717,  723.  729,  761 
Siler  V.  Globe  Window  Glass  Co.   (21 

Ohio  Cir.  Ct.   Rep.  284;    11   Ohio 

C.  D.  784).  221,  642 
Silkman   v.   Yonkers   Water   Comrs. 

(1.52    N.    Y.    327;    46   N.    E.   Rep. 

612;    37  L.  R.  A.   827).  599 
Sillingford  v.  Good   (95  Pa.  St.  25), 

277 
Silsby  V.  Trotttr   (29  N.  J.  Eq.  228), 

105 
Silva  V.  Rankin   (80  Ga.  79;  4  S.  E. 

Rep.  7.56),  S3 
Simon  v.  Northwestern,  etc.,  Co.  (12 

Ohio  C.  C.  Rep.  170;   5  Ohio  Cir. 

Dec.  4.56),    113,   165 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Simmons  v.  Buckeye  Supply  Co.   (21 

Ohio   Cir.   Ct.   Rep.  455;    11    Ohio 

C.  D.  690),  260,  283 
Simons  v.  Vulcan  Oil,  etc.,  Co.    (61 

Pa.  St.  202),  310,  312 
Simons    v.    Van    Inger    (86    Pa.    St. 

330),  224,  226 
Simpson  v.  Pittsburgh,  etc.,  Co.   (28 

Ind.    App.    343;     62    N.    E.    Rep. 

753),  62,   86,  95,   270 
Sime   V.   Biittain    (4   B.   &   A.   375; 

2  N.  &-M.  594),  348 
Sims  V.  Mutual,  etc.,  Ins.  Co.    (101 

Wis.    586;    77    N.    W.    Rep.    908). 

827 
Sisson  V.  Hibbard    (75  N.  Y.  542). 

631 
Skaneateles    W.    W.    Co.    v.    Skane- 

ateles    (161   N.  Y.   154;   55  N.  E. 

Rep.  562,  affirming  33  N.  Y.  App. 

Div.  642;   54  N.  Y.  Supp.   1115), 

491,  497,   502 
Skillman  v.  Lachman   (23  Cal.  199), 

340,  348 
Skoagland  v.  St.  Paul  Gaslight  Co. 

(93    N.    \V.    Rep.    (Minn.)    668), 

724,  758 
Skym  V.   Weske,  etc.,  Co.    (47   Pac. 

Rep.   (Cal.)   110),  354 
Slater   v.   Haa  ^    (15    Colo.   574;    25 

Pac.  Rep.  1089),  345 
Slee  V.  Manhattan  Co.   ( 1  Paige  Ch. 

48),  366 
Sloan  V.  Furness   (29  Ohio  St.  568), 

329 
Small  V.  Attwood    (6  CI.  &  F.  232; 

2  L.  J.  Exch.  1;    1  Younge  407), 

319 
Smallhouse  v.  Kentucky,  etc.,  Co.   (2 

Mont.  443),  359 
Smiley    v.    Citizens',    etc.,    Ins.    Co. 

(14  W.  Va.  33),  805  ' 
Smiley   v.   McLauthlin    (138   Mass. 

363),  277 
Smiley  v.  Western,  etc.,  Gas  Co.   (27 

W.  N.  C.  238),  183 


Smiley  v.  Western,  etc.,  Co.  (138 
Pa.  St.  576;  27  W.  N.  C.  230;  21 
Atl.  Rep.  1),  161,  267 

Smith,  In  re  (L.  R.  10  Ch.  App.  79; 

23  W.  R.  297),  279 

Smith's    Appeal     (69    Pa.    St.   474), 

91 
Smith  V.  Boston  Gaslight  Co.    (129 

Mass.    318),    686,    697,    702,    707, 

713,  715,  723,  731,  750,  758 
Smith  V.  Blinker   (17  Mo.  148),  238 
Smith  V.  Capitol  Gas  Co.    ( 132  Cal. 

209;   64  Fa.-\  Rep.  258),  577,  586, 

607,  627 
Smith  V.  Citizens',  etc.,  Co.  ( 5  W.  N. 

C.  97),  845 
Smith  V.  Commonwealth    ( 14   Bush. 

(Ky.)   31;  29  Am.  Rep.  402),  633 
Smith  V.  Cooky   (65  Cal.  46;  2  Pac. 

Rep.  880),  51,  299,  342,  344 
Smith    V.     German    Ins.    Co.     (107 

Mich.   270;    65   X.   W.   Rep.   236), 

811,  820 
Smith  V.  Goldsboro   (121  N.  C.  350; 

28  S.  E.  ReiJ.  479),  548 
Smith    V.    Harrison     (42    Ohio    St. 

180),  233 
Smith  V.  Holloway    (124   Ind.   329; 

24  N.   E.   Rep.   886),   333 
Smith  V.  Jeyes   (4  Beav.  503),  338, 

339 
Smith   V.   Jones    (21    Utah   270;    60 

Pac.   Rep.    1104),    81 
Smith   V.   Lincoln    (170   Mass.   488; 

49  N.  E.  Rep.  640),  514 
Smith  V.  London  Gas  Co.    ( 7  Grant 

(N.  C.)   112),  612 
Smith  V.  Metropolitan  Ga.slight  Co. 

(12  How.  Pr.  187),  516 
Smith  V.  Miller   (49  N.  J.  L.  521 ;  13 

Atl.   Rep.   39),   182 
Smith  V.  Munhall   (139  Pa.  St.  253; 

21  Atl.  Rep.  735),  169,  262 
Smith   V.  Nashville    (88   Tenn.  464; 

12  S.  W.  Rep.  924),  561 
Smith  V.  Pawtucket  Gas  Co.    (25  R. 

S.   — ;    52   Atl.   Rep.    1078),    707, 

728 


TABLE  OF  CASES. 


(References  are  to  pages: ) 


Smith  V.  Rome    (19  Ga.  89),  333 
Smith  V.  Scranton  Gas  &  Water  Co. 
(5  Lack.   Leg.  N.  235),   607,   610 
Smith   V.    Westerly    (19    R.    I.   437; 

35  Atl.  Rep.  526),  488.  491,  499 
Smyth   V.   Ames    (169    U.    S.    524), 

431 
Smyth  V.  Sturges    (108  N.  Y.  495; 

15   N.   E.   Rep.   544,   affirming  30 

Hun  89),  635,  636 
Snell's  Case   (J..  R.  5  Ch.  App.  22). 

352 
Snoddy  v.  Bolcn    (122  Mo.  479;   24 

S.    W.    Rep.    142;    25    S.    E.    Rep. 

932),   83,   329,   334 
Snodgiass    v.    South    Penn    Oil    Co. 

(47   W.   Va.    509;    35   S.    E.    Rep. 

820).  90.  115,  188,  265 
Snow  V.  Nelson  (113  Fed.  Rep.  353), 

90 
Snyder   v.   Burnham    (77    Mo.    52), 

339 
Snyder  v.   Dwelling  House  Ins.   Co. 

(59   N.   J.   L.    544;    37    Atl.   Rep, 

1022,  reversing  34  Atl.  Rep.  931), 

801,  811 
Socala  V.  Chess  Carley  Co.    (30  La. 

Ann.  344;  1  So.  Rep.  824),  778 
Somerset    v.    Smith     (20    Ky.    Law 

Rep.   1488;   49   S.   W.   Rep.  456), 

453 
Soule    V.    San    Francisco     (54    Cal. 

241),  549 
South    Heton    Coal    Co.   v.   Haswell 

Coal   Co.    ([1898]    1   Ch.  465;    67 

L.  J.  Ch.  238;    78  L.  T.   366;   46 

W.  R.  355),  316 
South    Penn    Oil    Co.    v.    Mclntire 

(44   W.  Va.   296;    28   S.   E.   Rep. 

922),  5L  72,  280 
South  Penn  Oil  Co.  v.  Stone   (57  S. 

E.  Rep.    (W^  Va.)   374),  103,  191 
South  Side  Gas  Co.  v.  Southern  Il- 
luminating  Co.    (18,  Pa.   Co.    Ct. 

529),  483,   528  ^ 

Southerland    v.    Heathcote     ([1892] 

Ch.  504),  105 


Southern    Illuminating    Co.,    In    re 
(5  Pa.  Dist.  781),  459,  482,  483, 

527 
Southern  Oil,  Langabough  v.  Ander- 
son  (22  Ohio  Cir.  C.  Rep.  178;  12 

Ohio  C.  D.  341),  682 
Southwestern,    etc.,    Co.    v.    Joplin 

(113    Fed.    Rep.    817),    454,    462, 

420,  497,  499,  538 
Southern  Oil  Co.  v.  Wilson  ( 22  Tex. 

Civ.    App.    534;    56    S.    W.    Rep. 

429),   169.   217 
Sparks  v.   Pittsburgh   Co.    ( 159   Pa. 

St.  295;  28  Atl.  Rep.  152),  143 
Spratt   V.    South    Metropolitan   Gas 

Co.   (7  Gas  J.  663),  576,  602 
Spaulding  v.   Hallenbeck    (35  N.  Y. 

204).  102 
Spaulding    v.    Peabody     (153    Mass. 

129;  26  X.  E.  Rep.  421;   10  L.  R. 

A.  397),  562 
Spencer  v.  Austin   (38  Vt.  258),  251 
Sperry   v.    Insurance    Co.     (22    Fed. 

Rep.    516),    796 
Sperry  v.  Springfield,  etc.,   Ins.   Co. 

(26  Fed.  Rep.  234;   15  Ins.  L.  Jr. 

270).  800,  810 
Spilman  v.  Parkersburg   (35  W.  Va. 

605;   14  S.  E.  Rep.  279),  450,  567 
Springer  v.   Citizens',  etc..   Gas  Co. 

(145    Pa.    St.    430;    22    Atl.    Rep. 

986),  131,  183,  186,  222,  232,  271 
Springer   v.   Gas   Co.    (145    Pa.    St. 

430;   22  Atl.  Rep.  986),  109 
Springer  v.  National  Gas  Co.    (145 

Pa.   St.   430;    22   Atl.   Rep.   986), 

212 
Springfield     v.     Edwards      (84     111. 

626),  451 
Springfield  Foundry,  etc.,  Co.  v.  Cole 

(130  Mo.    1;    31    S.  W.   Rep.  922, 

reversing    57    ]\Io.    App.    11).    63. 

359 
Springfield,   etc..    Co.    v.    Cole    (130 

Mo.    1;    31   S.   W.   Rep.   922),   75, 

640 
Spring    Brook,    etc.,    Co.    v.    Schadt 

Co.    (3  Lack.  L.  News   170),  838 


TABLE   OF   CASES. 


(References  are  to  pages.) 


Spring  Valley  Water  Works  Co.  v. 

Barber   (99  Cal.  36;  33  Pae.  Rep. 

735;  21  L.  R.  A.  416),  838 
Spring    Valley    W.    W.    v.    Bartlett 

(63  Cal.  245),  432 
Spring   Valley    W.    W.    v.    Bartlett 

(16  Fed.  Rep.  615),  443 
Spring    Valley    W.    W.    v.    Bryant 

(52  Cal.  132),  431 
Spring  Valley  W.  W.  v.  San  Fran- 
cisco  (61  Cal.  3),  443 
Spring  Valley  W.  W.  v.  San  Fran- 
cisco   (82  Cal.  286;   22  Pac.  Rep. 

910,  1046;  6  L.  R.  A.  756;  16  Am. 

St.  Rep.  116),  428,  431,  432,  618, 

626 
Spring   Valley    W.    W.    Co.    v.    San 

Francisco   (110  U.  S.  353;  4  Sup. 

Ct.  Rep.  48),  618,  619 
Spring   Valley   W.    W.   v.   Schottler 

(110  U.   S.  347;   4  Sup.  Ct.  Rep. 

48),  440,  443 
St.  Anthony  Falls  Water  Power  Co. 

V.  Board    (168  U.  S.  349;   18  Sup. 

Ct.  Rep.  157),  492 
St.  Clair  Coal  Co,  v.  Martz   ( 75  Pa. 

St.   384),   359 
St.  Helen's  Smelting  Co.  v.  Tipping 

(11  H.  L.  Cas.  642;  35  L.  J.  Q.  B. 

66;  11  Jur.   (N.  S.)   785;  12  L.  T. 

(N.  S.)   775;  13  W.  R.  1083),  663 
St.  Jolin  V.  American,  etc.,  Ins.  Co. 

(11    N.    Y.    516;    1    Duer    371;    3 

Benn.  Fire  Ins.  Cas.  760),  804 
St.  John  Gas  Co.  v.  Clarke    (17  N. 

B.  307),  622 
St.  Joseph  Hydraulic  Co.  v.  Wilson 

(133    Ind.    465;    33    K    E.    Rep. 

113),  608,  610 
St.    Louis   V.    Arnot    (94   Mo.    275; 

7  S.  W.  Rep.  15),  430 
St.   Louis   V.    Gaslight    Co.    (5   Mo. 

App.   484),   480 
St.  Louis  V.  Jackson    (25  Mo.   37), 

488 
St.  Louis  V.   St.  Louis  Gaslight  Co. 

(70  Mo.  69,  reversing  5  Mo.  App. 

484),  484,  536,  568,  577 


St.   Louis  V.   Weber    (44  Mo.   547), 

488 
St.    Louis    V.    Western   U.    Tel.    Co. 

(148  U.  S.  92),  444 
St.     Louis     Brewing    Assn.     v.     St. 

Louis  (37  S.  W.  Rep.  (Mo.)  525), 

580,  604 
St.  Louis  Gaslight  Co.  v.  St.  Louis, 

etc.,  Co.    (16  Mo.  App.  52),  494 
St.  Louis  Gaslight  Co.  v.  St.  Louis 

(11   Mo.   App.   55;    84   Mo.   202), 

625 
St.  Louis  Gaslight  Co.  v.  St.  Louis 

(46  Mo.   121),  484,  463 
St.  Louis  Gaslight  Co.  v.  St.  Louis 

(86    Mo.    495,    affirming    11    Mo. 

App.  55),  472,  473 
St.  Marys  Gas  Co.  v.  Elk  Co.    (191 

Pa.   St.   458;    43   Atl.   Rep.   321), 

838 
St.  Mary's  Woolen  Mfg.  Co.  v.  Brad- 
ford Glycerine  Co.    (14  Ohio  Cir. 

C.  Rep.  522),  685 
St.   Paul  Trust  Co.  v.  Mintzer    (65 

Minn.    124;    67   N.   W.   Rep.   657; 

32  L.  R.  A.  756),  291 
St.  Tammany  W.  W.  Co.  v.  New  Or- 
leans W.   W.  Co.    (120  U.  S.  64; 

7  Sup.  Ct.  Rep.  405;   14  Fed.  Rep. 

194),  493,  494,  497 
Stage  V.  Boyer  (183  Pa.  St.  560;  38 

Atl.  Rep.   1035),  68,  83,   165,  213 
Stahl    V.    Van   ^Heck    (53    Ohio    St. 

136;  41  N.  E.  Rep.  35;  33  W'kly. 

L.  Bull.  335),  86,  95,  96,  126,  129, 

142,  167,   168,  215 
Standard   Oil   Co.   v.   Danville    (199 

111.    .50;    04   N.   E.   Rep.    1110,   af- 
firming 101   111.  App.  65).  419 
Standard  Oil  Co.  v.  Lane    (75  Wis. 

636;  44  N.  W.  Rep.  644;   7  L.  R. 

A.   191),   353 
Standard    Oil    Co.    v.    Sowden     (55 

Ohio  St.  332;  45  N.  E.  Rep.  320; 

36  Wkly.  L.  Bull.  306;   37  Wkly. 

L.  Bull.  3),  356,  361 


TABLE  OF   CASES. 


(References  are  to  pages.) 


Standard  Oil  Co.  v.  Swan  (89  Tenn. 

434;   14  S.  W.  Rep.  928;  15  S.  W. 

Rep.  1068;   10  L.  R.  A.  360),  779 
Standard  Oil  Co.  v.  Tierney  (92  Ky. 

367;  17  S.  W.  Rep.  1025;  14  L.  R. 

A.  677;  13  Ky.  L.  Rep.  626),  405 
Standard  Oil  Co.  v.  Tierney  (95  Ky. 

633;    96   Ky.   89;    27    S.   W.   Rep. 

983),  405 
Stanley  v.  Western,  etc.,  Co.   (L.  R. 

3   Exch.   71;    37   L.  J.   Exch.   73; 

17  L.  T.    (X.   S.)    513;    10  W.  R. 

369),   800 
Staples  V.  Dickson    (88  Me.  362;  34 

Atl.  Rep.   168),  547 
State  V.  Berdetta    (73  Ind.  185;   20 

Am.  Law  Reg.  342;   38  Am.  Rep. 

117),  334,  512,  513,  514 
State  V.  Berry   (52  N.  J.  L.  308;  19 

Atl.  Rep.  665),  649 
State  V.  Boyce    (43  Ohio  St.  46;    1 

N.  E.  Rep.   17),  524 
State  V.  Butte  City  Water  Co.    (18 

Mont.  199;   44  Pac.  Rep.  966;   32 

L.   R.   A.   697;    56   Am.    St.   Rep. 

574;   4  Am.  and  Eng.  Corp.   Cas. 

(N.  S.)  238),  577,  579.  593,  594 
State  V.  Burt  (64  N.  C.  619),  42 
State  V.  Cincinnati  Gaslight  &  Coke 

Co.    (18  Ohio  St.  262),  428,  431, 

434,   488,  499.   505,   540 
State  V.  Cleveland,  etc..  Co.    (3  Ohio 

Cir.  Ct.  251),  440 
State    V.    Columbus    Gaslight,    etc., 

Co.     (.34    Ohio    St.    572;    32    Am. 

Rep.  390),  426.  440,  540,  618,  625 
State  V.   Consolidated   Gas   Co.    (85 

Md.  637;   37   Atl.  Rep.  263),  690, 

697,   704,   707,   710,  758 
State  V.   Consumers'  Gas  Trust  Co. 
(157  Ind.  345;  61  N.  E.  Rep.  674; 

55  L.  R.   A.  245),  577,   581,  585, 

586,   596 
State    V.    Coosaw    Mining    Co.     (47 

Fed.   Rep.   225).    83  f 
State  V.  Fangboner  (14  Ohio  Cir.  Ct. 

Rep.   104;   7  Ohio  Dec.  334),  836 
State  V.  Frazier    (28  Ind.  196),  512 


State   V.    Goswell    (93    N.   W.   Rep. 

(Wis.)    542),  604,  026 
State  V.  Great  Falls  (19  Mont.  518; 

49   Pac.   Rep.    15),   476,   502,   508 
State  V.  Hamilton   (47  Ohio  St.  52; 

23  N.  E.   Rep.   935;   29  Am.  and 
Eng.  Corp.  Cas.  208),  496,  558 

State  V.  Harrison   (46  N.  J.  L.  79), 

453 
State  V.  Hayes    (78  Mo.  307),  53 
State  V.  Indiana,  etc.,  Co.   (120  Ind. 

575;   22  N.  E.  Rep.  778;   29  Am. 

and  Eng.  Corp.  Cas.  237 ;  6  L.  R. 

A.   579),   53,   383,   384,   385,   389, 

415 
State  V.  Ironton  Gas  Co.    (37  Ohio 

St.  45),  425,  431,  452 
State    V.    Janesville,    etc.,    Co.     (92 

Wis.   496;    66   N.   W.    Rep.   512), 

540,  541 
State  V.   Jersey   City    (45   N.   J.   L. 

246;   2  Am.   and  Eng.   Corp.  Cas. 

233),   618 
State  V.  Joplin  W.  W.   ( 52  Mo.  App. 

312),    626 
State  V.  Kearney    (49  Neb.  337;   70 

N.  W.  Rep.  255;  49  Neb.  325;  68 

N.  W.  Rep.  533),  470 
State  V.  Laclede  Gaslight  Co.    (102 

Mo.  472;  22  Am.  St.  Rep.  789;  34 

Am.  and  Eng.   Corp.   Cas.  49;    14 

S.   W.    Rep.   974;    15   S.    W.   Rep. 

383),  459,  508,  527,  535,  538,  420, 

422,  427 
State   V.   Le^y    (.36   La.   Ann.   491), 

612 
State  V.  Low    (46  W.  Va.  451;    33 

S.  E.  Rep.  271),   840 
State  V.  Mathis    (21  Ind.  277),  512 
State   V.   McCauley    (15   Cal.   429), 

450 
State   V.    McGough     (118    Ala.    159; 

24  So.  Rep.  395),  419 

State    V.    Milwaukee    Gaslight    Co. 

(29  Wis.  454;    9  z^m.  Rep.  598), 

446.  479.   541 
State  V.  Moore   (12  Cal.  56),  839 


TABLE   OF   CASES. 


(References  are  to  pages.) 


State  V.  Moore    (27   Ind.   App.   83; 

60  N.  E.  Rep.  955),  417 
State  V.  Murphy    (170  U.  S.  78;   18 

Sup.  Ct.  Rep.  505),  528,  531,  533 
State  V.   New   Orleans,  etc.,   Co.    (2 

Rob.   (La.)   529),  540 
State  V.  New  Orleans,  etc.,  Co.    (32 

So.    Rep.     (La.)     179),    583,    584, 

585,   592,   595,   615 
State   V.   Oak   Harbor   Gas   Co.    (18 

Ohio   Cir.    Ct.    Rep.    751;    4   Ohio 

Cir.  Ct.  Dec.  158,  affirmed  53  Ohio 

St.  347;  41  N.  E.  Rep.  584),  417 
State   V.   Oak   Harbor   Gas   Co.    (53 

Ohio  St.  347;  41  N.  E.  Rep.  584, 

reversing  34  Wkly.  L.  Bull.  221; 

18  Ohio  C.  Ct.  Rep.  751;  1  Toledo 

Leg.  News   158),   55 
State    V.    Ohio    Oil    Co.     (150    Ind. 

21;  49  N.  E.  Rep.  809;   47  L.  R. 

A.  627),  33,  34,  39,  55,  417,  418 
State  V.  Parker  (61  Tex.  265),  331 
State  V.  Payne  (129  Mo.  468;  31  S. 

W.  Rep.  797;  33  L.  R.  A.  576), 

528,  535 
State  V.  Portland  Natural  Gas  &  Oil 

Co.   (153  Ind.  483;  53  N.  E.  Rep. 

1089;    53  L.   R.   A.   413;    74   Am. 

St.  Rep.   314).   503 
State     V.     Quayle      (71     Pac.     Rep. 

(Utah)     1060).    450 
State    V.    Rodman    (58   Minn.    393; 

59  N.  W.  Rep.  1098),  38 
State   V.    Sedalia   Gaslight   Co.    (34 

Mo.  App.  501;   84  Mo.  202),  596, 

618,   625 
State  V.  St.  Louis   (145  Mo.  551;  46 

S.  W.  Rep.  981),  488,  513,  533 
State  V.   State  Board    (57  N.  J.  L. 

516;   31   Atl.  Rep.  220;    27  L.  R. 

A.    084).    837 
State  V.  Toledo    (48   Ohio   St.    112; 
20  N.  E.  Rep.   1061;   11  L.  R.  A. 
729),  559 
State   V.    Weatherby    (45   Mo.    17), 

519 
State  V.   Wellman    (34  Minn.  221), 
843 


State    V.    Wilkinson     (2    Vt.    480), 

512 
State  V.  Wilson   (42  Me.  9),  329 
State  National  Bank  v.  Butler   (149 

111.    575;     36    N.    E.    Rep.     1000, 

reversing  48   111.   App.   648),   338, 

339 
Stearns    v.    Harris     (8    Allen    597), 

199 
Steelsmith  v.  Fisher  Oil  Co.   (47  W. 

Va.  391;   35  S.  E.  Rep.  15),  126 
Steelsmith   v.    Gartlan    (45   W.   Va. 

27;    29   S.  E.   Rep.   978;   44  L.   R. 

A.    107),   68,   90,   93,  98,  99,   107, 

115,  124,   129,   145,   163,   166,  167, 

168,  250 
Steger    v.    Arctic    Refrigerator    Co. 

(89  Tenn.  453;   14  So.  Rep.  1087; 

11  L.  R.  A.  580),  363 
Stein  V.  Bienville  Water  Supply  Co. 

(34    Fed.   Rep.    145,   affirmed    141 

U.  S.  67;   11  Sup.  Ct.  Rep.  892), 

460,  490 
Steinau    v.    Cincinnati    Gaslight    & 

Coke  Co.    (48  Ohio  St.  324;  27  N. 

E.  Rep.  545,  reversing  2  Ohio  Cir. 

Ct.  Rep.   286),   615 
Steinbach  v.  Lafayette  Ins.  Co.    (54 

N.  Y.  90),  810 
Steinbach  v.  Relief  Ins.  Co.    (77  N. 

Y.    498,    affirmed    13    Wall.    183), 

810 
Steiner  v.  Marks    (172  Pa.  St.  400; 

33  Atl.  Rep.  695),  193,  214 
Sterling's  Appeal    (111  Pa.   St.   35; 

2    Atl.    Rep.    105;    2    Cent.    Rep. 

49),  391,  491,  501,  529,  552 
Stetson  v.  Kempton   (13  Mass.  272), 

563 
Stevens  v.  Guffey  (3  Russ.  171 ;  6  L. 

J.    (0.  S.)    164).  317 
Stewart  v.  Long  Island  Ry.  Co.   (102 

N.  Y.  601).  231 
Steward  v.  Wolveridge  (9  Bing.  60), 

244 
Stimmel   v.    Water    (2    Bush.   282), 

246,   247 


TABLE   OF  CASES. 


(References  are  to  pages.) 


Stinson  v.  Hardy    (27  Ore.  584;   41 

Pac.  Rep.  116),  359 
Stock   V.    Boston    (149    Mass.    410; 

21  N.  E.  Rep.  871),  591 
Stockbridge     Iron     Co.     v.    Hudson 

Iron  Co.    (107  Mass.  290),   105 
Stockport  W.  W.  Co.  v.  Potter  (7  H. 

&  N.  160;  7  Jur.   (X.  S.)   880;  31 

L.  J.  Exch.   9),  653 
Stockton  V.  Stockton  (40  Ind.  225), 

172 
Stoddard    v.    Emery     (128    Pa.    St. 

436;    24    W.    X.    C.    566;    18    Atl. 

Rep.  339),  107,  115,  128,  230 
Stone  V.  Boston,  etc.,  Ry.  (171  Mass. 

536;  51  X.  E.  Rep.  1,  41  L.  R.  A. 

794),  409 
Stoughton's     Appeal     (88     Pa.     St. 

198),  32,  33,  42,  51,  72,  279,  280 
Stoughton  V.  Leigh    (1  Taunt.  402, 

410),   288,   290,   294,   295 
Stout  V.   Commercial,  etc.,   Ins.   Co. 

(12  Fed.  Rep.  554;   11  Biss.  309; 

11  Ins.  L.  J.  688),  810 
Strawbridge    v.    City    of    Philadel- 
phia   (2  Penn.  419),  690 
Strawbridge     v.     Philadelphia      (13 

Phila.   173;   36  Leg.  Int.  276;   13 

Rep.    216;     2    Penny.    419),    515, 

685.   690,   697,   722 
Stryker  v.   Cassidy    (76   X.   Y.   50), 

358 
Stuart  V.   Adams    (89  Cal.  367;   26 

Pac.  Rep.  970),  338,  344,  349,  351 
StuU   V.   Harris    (51    Ark.    294;    11 

S.  W.  Rep.  104),  281 
Sturges    V.    Bidgman     (11    Ch.    Div. 

852;    48  L.  J.   Ch.   785;   41   L.  T. 

219;   28  W.  R.  200),  063 
Sturtevanfs     Appeal      (34    Pa.     St. 

149),  369 
Suburban  Electric,  etc.,  Co.  v.  East 

Orange     (41    Atl.    ^ep.     (X.    J.) 

865),  481,  535 
Suburban,  etc..  Co.  v.   East  Orange 

(44  Atl.  Rep.    (N.  J.)    628),  518 


Suflfern    v.    Butler     (21    N.    J.    Eq. 

410,  affirming  4  C.  E.  Green  Ch. 
(X.  J.)   202),  62,  73 
Sufferin  v.  Butler    (4  C.  E.  Gr.  Ch. 
(X.    J.)     202,    affirmed    21    N.    J. 

Eq.  410),  77 
Summer  v.  Bromilow   (34  L.  J.  Q.  B. 

130),  647 
Sunday  Lake  Mining  Co.  v.   Wake- 
field  ( 72  Wis.  264 ;  39  X.  W.  Rep. 

136),  218,  219 
Sunnyside  Coal  Co.  v.  Reitz  ( 14  Ind. 

App.  478;  43  X.  E.  Rep.  46),  49 
Superior    v.    Xorton    (63    Fed.    Rep. 

357),  469 
Surcombe  v.  Pinniger    (3  DeG.  M.  & 

G.  571;  22  L.  J.  Ch.  419),  315 
Susquehanna  Fertilizer  Co.  v.  Spang- 

ler    (86    Md.    562;    39    Atl.    Rep. 

270),  664 
Svea,  etc.,  Co.  v.  Packham    (92  Md. 

464;   48  Atl.   Rep.   359;    52   L.  R, 

A.  95),  827 
Swearinger    v.    Steers    (49    W^.    Va. 

312;   38  S.  E.  Rep.  510),  277 
Swint      V.       McCalmont       Oil       Co. 

(184    Pa.    St.    202;    41    W.    X.    C. 

491;  38  Atl.  Rep.  1021),  103,  142, 

229,  231,  260.  309 
Sydney     (27    Fed.    Rep.    119,    123), 

702 
Sylvester  v.  McCuaig    (28  Up.  Can. 

C.  P.  443),  345 
Syracuse  City  Bank  v.  Tallman   (31 

Barb.  201 ) ,  367 
Syracuse    Water     Co.     v.     Syracuse 

(116   X.   Y.    167;    22    X.   E.    Rep. 

381:  5  L.  R.  A.  546).  492,  496 


Tabbart,    Ex    parte     (6    Ves.    428), 

279 
Tacoma  Gas,  etc.,  Co.  v.  Tacoma  ( 14 

Wash.    288;    44    Pac.    Rep.    655), 

434.  439 
Tacoma   Hotel   Co.   v.   Tacoma,   etc., 

Co.    (3    Wash.    St.    316;    28    Pac. 

Rep.  516),  600,  607,  610 


TABLE  OF  CASES. 


(References  are  to  pages.) 


Taliaferro    v.    Gay     (78    Ky.    496), 

367 
Tampa  v.  Tampa  W.  W.  Co.  (34  So. 

Rep.  (Fla.)  631),  434,  438,  440, 

524,  528 
Tanneit  v.  Ins.  Co.  (34  La. 

Ann.  249),  805 
Tarry  town,  etc..  Gaslight  Co.  v.  Bird 
(65    Hun    621;     19    N.    Y.    Supp. 

988),  622,  623 
Tarrytown  v.   Pocontico  W.  W.  Co. 

(1   N.   Y.   Supp.   394),   518 
Taylor  v.  Baldwin   (78  Cal.  517;  21 

Pac.  Rep.  124),  733 
Taylor  v.  Castle   (42  Cal.  367),  342, 

347 
Taylor  v.  Evans   ( 1  H.  &  N.  101;  25 

L.  J.  Exch.  269),  272 
Taylor    v.    Fried     (161    Pa.    St.    53; 

28  Atl.  Rep.  993),  307,  342 
Taylor  v.  Lambertville  ( 10  Atl.  Rep. 

(N.  J.)    809),  447.  453,  455,  456, 

469 
Taylor  v.  Mostyn   (23  Ch.  Div.  583; 

53    L.   J.    Ch.    89;    49   L.   T.   483; 

32  W.  R.  256),  373,  378,  380 
Taylor  v.  Mostyn  (33  Ch.  Div.  226), 

372,    373 
Taylor  v.    Peerless   Refining   Co.    ( 7 

Ohio    Dec.    368;     14    Ohio    C.    C. 

315),   52,   156 
Taylor   v.   Watkins    (62   Ind.   511), 

630 
Teaff   V.    Hewitt    (1    Ohio    St.    511, 

530),  629 
Tenant  v.  Goldwin   (1  Salk.  21,  360; 

2  Ld.  Raym.  1089),  674 
Tennessee,  etc.,  Co.  v.  Hamilton  ( 100 

Ala.  252;    14   So.   Rep.   167),   654 
Terre    Haute    Gas    Co.    v.    Teel    (20 

Ind.   131),   672 
Terstegge  v.  First  German,  etc.,  Co. 

(92  Ind.  82).  172 
Tliackarah  v.  Haas    (119  U.  S.  499; 

7    Sup.   Ct.   Rep.    311),    174 
Theriot  v.  Michel  (28  La.  Ann.  107), 

346 


Thistlewaite  v.  State  (149  Ind.  319; 

39  N.  E.  Rep.  156),  599 
Thomas  v.  Brackney  (17  Barb.  654), 

664 
Thomas,  etc.,  Co.  v.  Herter    (60  111. 

App.   58),   49 
Thomas  v.  Hukill    (34  W.  Va.  385: 

12  S.  E.  Rep.  522),  154,  183,  201 
Tliomas    v.    Hurst     (73    Fed.    Rep. 

372),  327 
Tliomas  v.  Kirkbride    (15  Ohio  Cir. 

Ct.   Rep.   294;    8   Ohio  Dec.    181), 

199,    202,    209 
Thomas  v.  Marble,  etc.,  Co.  (58  Fed. 

Rep.  485),  121 
Thomas  v.   Railroad   Co.    101    U.   S. 

71),  527 
Thomas  v.   Smith    (42   Pa.   St.  68), 

359 
Thompson's    Appeal     (101     Pa.    St. 

225).  81 
Thompson     v.     Bowman      (6    Wall. 

316),  346 
Thompson  v.   Christie    (138  Pa.   St. 

230;    27    W.    N.    C.    87;    20    Atl. 

Rep.  934;    11  L.  R.  A.  236),  103, 

104,  193,  197,  200,  202.  218,  224 
Thompson  v.   Mattern    (115   Pa.  St. 

501;   9  Atl.  Rep.  70),   334 
Thompson  v.  Nemeyer   (59  Ohio  St. 

486;  52  N.  E.  Rep.  1024),  571 
Thompson  v.   Newton    (7   Atl.   Rep. 

(Pa.)    64),  304,  307 
Thompson  v.  Noble    (3  Pittsb.  201; 

17  Pittsb.  L.  Jr.  45),  32 
Thompson  v.  People   (23  Wend.  537, 

579),  519 
Thompson  Glass  Co.  v.  Fayette  Fuel 

Co.  (137  Pa.  St.  317;  21  Atl.  Rep. 

93),  610 
Tliomson-Houston     Electric     Co.     v. 

Newton    (42  Fed.  Rep.   723),  561 
Thorn   v.    East   London    W.    W.    Co. 

(66  Gas  J.   189).  588,   600 
Thorn    v.    Sutherland     (123    N.    Y. 

236;  25  N.  E.  Rep.  362,  reversing 

4  N.  Y.  694),  639 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Thorneycroft  v.  Crockett    (16  Sims. 

445;    2   H.   L.   Cas.   239;    12   Jur. 

1081),  371,  372,  374,  376 
Thunder  v.  Belcher    (3   East.  449), 

367 
Tidewater   Pipe   Line   Co.   v.   Berry 

(53    N.   J.    L.    212;    21    All.   Rep. 

490),  833 
Tiehr  v.   Consolidated   Gas   Co.    (51 

N.   Y.   App.   Div.   446;    65   N.   Y. 

Supp.  10),  699,  702,  706,  767 
Tift  V.  Horton   (53  N.  Y.  377),  631 
Tiley  v.  Moyers    (43   Pa.   St.  404), 

268 
Tilly  V.  Slough  Gas  &  Coke  Co.   (17 

Gas  J.  231),  667 
Timlin  v.  Brown    (158  Pa.  St.  606; 

28   Atl.   Rep.   236),    162 
Tipping  V.    Robbins    (64   Wis.    546; 

25  N.  W.  Rep.  713),  80,  297 
Tipping  V.   Robbins    (71   Wis.   507; 

37  N.  W.  Rep.  427),  63,  80.  297 
Tipton-Green  Colliery  Co.  v.  Tipton 

Moat  Co.    (7  Ch.  Div.  192;  47  L. 

J.  Ch.  152;  26  W.  R.  348),  372 
Tipton  Light,  etc.,  Co.  v.  Newcomer 

(67  N.  E.  Rep.   (Ind.  App.)   548), 

735,  743 
Titusville  Novelty  Iron  Works'  Ap- 
peal   (77   Pa.   St.   103).   642 
Titusville    Iron   Works   v.    Keystone 

Oil  Co.   (130  Pa.  St.  211;   18  Atl. 

Rep.  739),  364 
Toledo  V.  Hosier    (54  Ohio  St.  418; 

43    N.    E.    Rep.    583;    35    Ohio    L. 

J.  215),  835,  838 
Toledo  V.  N.  W.  Ohio  Natural  Gas 

Co.    (5    Ohio   C.    C.    557;    3   Ohio 

Cir.  D.   273),  424,  426,  431,   440, 

586,   621 
Toledo  V.  N.  W.   Ohio,  etc.,  Co.    (8 

Ohio    S.    and    C.    P.    Dec.    277;    6 

Ohio  N.  P.   531;    5  Ohio  Cir.  Ct. 

Rep.    557),    424,  ^28,    434,    597, 

598 
Tousley  v.  Galena,  etc.,  Co.  (24  Kan. 

328),  333,  334 


Towne    v.    Fiske     (127    Mass.    125; 

34  Am.  Rep.  353),  633 
Townsend    v.    Brown     (24    N.    J.    L. 

80),  528 
Townsend   v.    State    (147    Ind.    624; 

47    N.    E.    Rep.    19;    37    L.    R.    A. 

294;    62    Am.    St.    Rep.    477),    33. 

34,  35,  45,  418 
Townsend    Gas,    etc.,    Co.    v.    Port 

Townsend  (19  Wash.  407;  53  Pac. 

Rep.   551),   559 
Traders'  Ins.  Co.  v.  Catlin    ( 163  111. 

256;  45  N.  E.  Rep.  255,  reversing 

59   111.   App.   162),   801,  809 
Traders'   Ins.   Co.  v.   Race    (142   111. 

338;    31    N.    E.    Rep.    392),    801, 

827 
Trans-Atlantic  Fire  Ins.  Co.  v.  Dor- 

sey    (56   Md.   70),   805 
Traverse   City   Gas   Co.   v.   Traverse 

City     (89    N.    W.    Rep.     (Mich.) 

574),  420,  531.  533 
Travellers'  Ins.  Co.  v.  Dunlap    ( 160 

111.  642;    43   N.  E.  Rep.   765,   af- 
firming 59  111.  App.  515),  829 
Tredinnick   v.    Red   Cloud,   etc.,   Co. 

(72   Cal.   78;    13   Pac.  Rep.   152), 

362 
Tiedwen  v.  Bourne  (6  M.  &  W.  461; 

9    L.    J.     (N.    S.)     Exch.    290;    4 

Jur.  747) ,  348 
Trees  v.  Eclipse  Oil  Co.    (47  W.  Va. 

107;    34   S.  E.  Rep.   933),   84,  90, 

120,   303.   308,   366 
Trent    v.    Hunt    (9    Exch.    14,    22), 

360 
Triple,  etc.,   Co.  v.  Wellman    (70  S. 

W.  Rep.    (Ky.)    49;    24  Ky.  Law 

Rep.  851),  682.  685,  691,  738 
Truby  v.  Palmer  (4  Cent.  Rep. 

(Pa.)  925;  G  Atl.  Rep.  74;  136 

Pa.  St.  556;  20  Atl.  Rep.  510), 

136.   198 
Truman  v.  Truman    (79  la.  506;  44 

N.  W.   Rep.   721).   315 
Trust   V.    Miami    Oil    Co.     (10    Ohio 

D.  372;   19  Ohio  C.  C.  Rep.  727), 

361 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Trustees  of   School  v.   Schroll    (120 

111.   509;    12  N.  E.  Rep.  243),  93 
Trustees,  etc.,  v.  Williamson  (26  Pa. 

St.   196),  801 
Tubb    V.    Liverpool,    etc.,    Ins.    Co. 

(106  Ala.  651;   17  So.  Rep.  615), 

809,  815 
Tugman   v.    Cliicago    (78    111.   405), 

488 
Tullit  V.  Tullit    (Anib.  370),  279 
Tunbridge     Wells     Corporation     v. 

Baird   ([1896]   App.  Cas.  434;   65 

L.  J.  Q.  B.  451;  74  L.  T.  385;  60 

J.  P.  788),  517 
Turnbull  v.  Home  Fire  Ins.  Co.   (83 

Md.  312;    34  Atl.  Rep.   875),  825 
Turner   v.   Revere   Water    Co.    (171 

Mass.   329;    50   N.   E.   Rep.   634). 

607,   608 
Twin  Lick  Oil  Co.  v.  Marbury    (91 

U.  S.  593),  69,  92,   145,   146,   147 
Tyner  v.  People's  Gas  Co.   (131  Ind. 

408;  31  N.  E.  Rep.  61),  136 
Tyrone  Gas  &  Water  Co.  v.  Tyrone 

(195    Pa.    St.    566;    46   Atl.   Rep. 

134),  481,  497 


U 


Uhl  V.  Ohio  River  Ry.  Co.    (47  W. 

Va.  59;   34  S.  E.  Rep.  934),  395 
L^nion  Coal  Co.  v.  City  of  La  Salle 

(1.36  111.  119;  26  N.  E.  Rep.  506; 

12  L.  R.  A.  326),  333 
Union   Ferry  Co.,   In  re    (98  N.  Y. 

139),  509 
Union  Oil  Co.,' 7n  re   (25  Land  Dec. 

351;  23  L.  D.  222),  55 
Inion  Oil  Co.    (25  Land  Dee.  351), 

3.30 
Lnion   Oil   Co.'s   Appeal    (3   Penny. 

(Pa.)    504),  261 
Union  Petroleum  Co.  v.   Bliven  Pe- 
troleum Co.    (72  Pa.  St.  173),  72, 

106 
United    Electric   Light,    etc.,    Co.   v. 

Beneman  (46  N.  Y.  Supp.  916;  21 

N.  Y.  Misc.  41),  614 


United   Life   Ins.   Co.   v.   Foote    (22 

Ohio  St.  340;  2  Ins.  L.  Jr.  190), 

805 
United  Merthyr  Coal  Co.,  In  re   (L. 

R.   15  Eq.  46;   21  W.  R.  117),  49 
United    Mines    Co.    v.    Hatcher    (79 

Fed.  Rep.  517;   25  C.   C.  A.  46). 

359,  361 
United    Oil    Co.    v.    Roseberry     (69 

Pac.   Rep.    (Cal.)    588),  707,   709, 

713,   728 
United   Pipe  Line   Co.   v.   Delaware, 

etc.,   Ry.    Co.    (62   N.   J.    L.    254; 

41    Atl.    Rep.    759;    42    L.    R.    A. 

572),  394 
United    States   v.   Buffalo,   etc.,    Co. 

(172  U.  S.  339;   19  Sup.  Ct.  Rep. 

200,  affirming  78  Fed.  Rep.   110; 

45   U.    S.   App.   ,345;    24   C.   C.   A. 

4),    55 
United  States  v.  Dermitt    (8   Wall. 

41),   419 
United  States  v.  New  Orleans  R.  R. 

(12  Wall.  362),  631 
United    States    Canal,    etc.,    Co.    v. 

Randolph   County   Board    (38   W. 

Va.  201;   18  S.  E.  Rep.  566),  841 
United    States,    etc.,    Co.    v.    Metro- 
politan Club    (6  App.  D.  C.  536), 

612 
United   States,  etc.,  Co.  v.  Newman 
(84   Va.   -52;    3   S.   E.   Rep.   805), 

830 
United  Water  Works  Co.  v.  Omaha 

Water  Co.    (21   N.  Y.  Misc.  594; 

48  N.  Y.  Supp.  817),  390 
United    States    W.    W.    Co.    v.    Du 

Bois    (176  Pa.  St.  439;   38  W.  N. 

C.  419;  35  AU.  Rep.  251),  460 
University  of  Vermont  v.  Joslyn  (21 

Vt.   52),  238 
Upington  v.   Corringan    (151    N.   Y. 

143;   45  N.  E.  Rep.  359),   186 


V 


Vail  V.  Weaver  (132  Pa.  St.  363;  19 
Atl.  Rep.   138),  636 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Vallee  es  Qualite  v.  New  City  Gas 
Co.    (7  Am.  Law.  Rev.  767),  708, 
749,  750 
Valparaiso  v.  Gardner    (97  Ind.   1; 

49  Am.  Rep.  416),  450.  468.  509 
Vandergrift's    Appeal     (83    Pa.    St. 

126),   360 
Vanderlin  v.  Hovis   (152  Pa.  St.  11; 

25  Atl.  Rep.  232).  101 
Vandevoort  v.  Dewey    (42  Hun  68), 

189 
Van  Meter  v.  Chicago,  etc.,  Co.    (88 

la.  92;   55  N.  W.  Rep.   106),  163 
Van  Rensselaer  v.  Hayes   (19  N.  Y. 

68;  75  Am.  Dec.  278),  229 
Van   Voorhis   v.   Oliver    (22   Pittsb. 

L.  J.    (N.  S.)    114),  87,  187 
Van  Wickley  v.  Paulson    ( 14  Barb. 

654),  251 
Vaughen  v.   Haldeman    (33   Pa.   St. 

522;   75  Am.  Dec.  622),  632 
Venture  Oil  Co.  v.  Fretts   (152  Pa. 

St.   451;    25   Atl.   Rep.    732),   68, 

115.  129,  148.  104,  283 
Verdolite  Co,  v.  Richards   (7  North 

Co.  Rep.    (Pa.)    113).   194 
Vervalen  v.  Older   (4  Halst.   (N,  J.) 

Ch.  98),  370,  371 
Vestry  of  St,  Mary  v.  County,  etc, 

Co,    ([1899]    1   Ch,  474;   68  L,  J. 

Ch,   238;    80   L.   T.   31;    15   T,   L, 

Rep.  175),  517 
Vickerman   v.   Leeds,   etc.,    Co.    (15 

Gas  J.  654),  718,  723 
Victoria    Docks   Gas   Co.   v.   Burton 

(16  Gas  J.  103).  620,  623 
Viele  V,  Germania  Ins.  Co,    (26  la. 

9;  96  Am.  Dec.  83),  817 
Vietti  V.  Nesbitt   (22  Nev.  390;   41 

Pac.  Rep.   151),  340 
Vincennes  v.   Citizens'   Gaslight  Co, 
(1.32  Ind.  114;  31  N.  E.  Rep.  573; 

16  L.  R.  A.  485),  456,  490,  509 
Viner   v.    Vaughan    (2    Beav,   466), 

288  *" 

Virginia   City   Gas    Co,    v,    Virginia 

City   (3  Nev.  320),  468 


Virginia  Coal  Co.  v.  Kelley   (93  Va. 

332;    24   S.  E.  Rep.   1820),  306 
Visalia  Gas,  etc.,  Co.  v.  Sims    (104 

Cal.    326;    37    Pac.    Rep.    1042), 

527 
Voorhis  v.  Freeman   (2  Watts.  &  S. 

116;    37   Am.  Dec.  490),  632 
Vosbeck  v,  Kellog    (80  N.  W.  Rep. 

(Minn.)   957),  754 


W 


Waddington  v.  Allegheny  Heating 
Co.  (6  Pa.  Co.  Ct.  Rep.  96),  428, 
434 
Wagner  v,  H.  W.  Jayne  Chemical 
Co.  (147  Pa.  St.  475;  29  W.  N. 
C.  490;    23  Atl.  Rep.  772),   721, 

736,    759 
Wagner  v.  Mallory    (41  N.  Y.  App. 

Div.    126;    58   N.   Y.   Supp.   526), 

165 
Wagner  v,  Mallory   (169  N,  Y.  501 ; 

62  N.  E.  Rep.  584,  affirming  58  N. 

Y.  Supp.  526),  42,  49,  75,  78,  79, 

230 
Wagner    v.    Rook    Island     (146    111. 

139;  34  N.  E.  Rep.  545;  21  L.  R. 

A.  519),  835 
WagstaflF  v.  Lowerre  (23  Barb.  209), 

252 
Wake  V.  Hall    (7  Q.  B.  Div.  295;  8 

App.  Cas.   195),  640 
Wakefield  v,  Sunday  Lake,  etc,  Co, 

(85    Mich,    605;    49    N,    W,    Rep. 

135),   195,  200,  210 
Waldeck  v.  Springfield,  etc,  Ins.  Co. 

(56  Wis.  96:    14  N.  W.  Rep.   1; 

12  Ins.  L.  Jr.  177),  804 
Walker   v,   Chicago,   etc.,  R.   R.   Co. 

(71  la.  658;  33  N.  W.  Rep,  224), 

701 
Walker  v,  Jeflfreys    (1   Ha.   341;    11 

L.   J.   Ch.   209;    6   Jur.   336),   314 
Walker  v.  Moore    (10  B.  &  C.  416; 

8  L.  J,   (0,  S.)  K.  B,  159),  320 
Walker  v,   Tupper    (152  Pa,   St.   1; 

25  Atl.  Rep.  172),  342 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Wall  V.  Hinds   (4  Gray  256;  64  Am. 

Dec.  64),  233,  635,  637,  638,  639 
Walla  Walla  v.  Walla  Walla  Water 

Co.    (172  U.  S.   1;   19  S.  Ct.  Rep. 

77),  420,  421,  444,  488,  489,  492, 

495,  499,  531,  538,  541,  675 
Wallace  v.   Jefferson  Gas  Co.    (147 

Pa.    St.    205;    23    Atl.   Rep.    416), 

397 
Wallace    v.    Standard    Oil    Co.     (66 

Fed.  Rep.  260),  781 
Wallace   v.   Travelers'   Ins.   Co.    (54 

Kan.  442 ;  38  Pac.  Rep.  489 ) ,  284 
Wallas  V.   San  Jose    (29  Cal.   180), 

469 
Waller  v.  Davis   (59  la.  103;   12  N. 

W.  Rep.  798),  351 
Walter  v.  Hartvvig    (106   Ind.   123; 

6  N.  E.  Rep.  5),  104 
Walters  v.  Morgan   (3  DeG.  F.  &  J. 

718;   4  L.  T.  758),  319 
Walters    v.    Northern    Coal    Mining 

Co.    (25  L.  J.  Ch.   (N.  S.)   633;  5 

DeG.  M.  &  G.  629;  26  L.  T.  167; 

4  W.  R.   140;   2  Jur.    (N.  S.)    1), 

228,  232,  235,  238,  242 
Walton  V.    Cronly    (14   Wend.   63), 

238,  365 
Wandsworth,  etc.,  Co.  v.  Wright  (19 

Gas  J.  407;   18  W.  R.  728),  540 
Ward   V.   Carp   River   Iron   Co.    (47 

Mich.    65;    10   N.   W.   Rep.    109), 

370,   371 
Ward  V.   Folkstone  W.  W.   Co.    (24 

Q.   B.   Div.   334;    59   L.   J.   M.   C. 

65;   62  L.  T.  321;   38  W.  R.  426; 

54  J.  P.  628),  547 
Ward   V.   Gaslight  &   Coke   Co.    (14 

Gas  J.  915;   15  Gas  J.  45,  75;   16 

Gas  J.   10,  38,  74,  108),  728,  764 
Ward  V.  Walton   (4  Ind.  75),  172 
Ward  V.  Ward    (40  W.  Va.  611;  21 

S.  E.  Rep.  746;  29  L.  R.  A.  449), 

292 
Warden  v.  Watson    (93  Mo.   107;   5 

S.  W.  Rep.  605),  77,  97,  329 


Ware  v.   Langmade    (9   Ohio  C.   Ct. 

Rep.    85;    6    Ohio    C.    Dec.   43;    2 

Ohio   Dec.    116),   94,   119,   125 
Warn  v.  Davis  Oil  Co.  (61  Fed.  Rep. 

631),  703,  779 
Warren  v.  Ferdinand   (9  Allen  357), 

277 
Warren  v.   Sohn    (112   Ind.  213;    13 

N.  E.  Rep.  863),  362 
Warren  v.  Wilder    (20  Gas  J.  892), 

735 
Warren  Gaslight   Co.  v.   Pennsylva- 
nia Gas  Co.   (13  Pa.  Ct.  Rep.  310, 

affirmed  161  Pa.  St.  510;  29  Atl. 

Rep.  101),  501,  529,  530 
Warsaw  W.  W.  Co.  v.  Warsaw   (16 

N.    Y.   App.    Div.    502;    44    N.    Y. 

Siipp.  876),  497 
Washburn   v.   Miami,   etc.,    Ins.   Co. 

(2   Fed.   Rep.   633;    2   Flipp.   664; 

9   Ins.  L.  Jr.  68),  805 
Washburn     v.     Artisans'     Ins.     Co. 

(Fed.   Cas.   No.    17212;    9   Ins.  L. 

Jr.  68),  805 
Washburn     v.     Fletcher      (42     Wis. 

152),  95 
Washburn   v.    W^estern   Ins.    Co.    (2 

Fed.    Rep.    633;     Fed.    Cas.    No. 

17216;  9  Ins.  L.  Jr.  424),  805 
Washington,  etc.,   Gas  Co.  v.  John- 
son (123  Pa.  St.  576;  16  Atl.  Rep. 

79;     16    Morr.    Min.    Rep.    165), 

231,  233,  235,  239,  245 
W^ashington  Gaslight  Co.  v.  District 

of  Columbia    (161   U.   S.   316;    16 

Sup.    Ct.   Rep.    564;    24   Wash.   L. 

Rep.  470,  affirming  20  D.  C.  39), 

547.   787 
Washington  Gaslight  Co.  v.  Eckloff 

(22   Wash.   L.   Rep.   656;    4   App. 

D.  C.  174),  697,  701 
Washington  Gaslight  Co.  v.  Eckloff 

(7  App.  D.  C.   372;   22  Wash.  L. 

Rep.  656;  4  App.  D.  C.  174),  721, 

730,   747,  750 
\A'ashington  Tp.,  etc.,  Co.  v.  McCor- 

mick   (19  Ind.  App.  663;  49  N.  E. 

Rep.  1085),  726,  727 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Watauga   Water   Co.   v.    Wolfe    (99 

Tenn.  429;  41  S.  W.  Rep.   1060), 

596 
\"\ateiman  v.  Banks   ( 144  U.  S.  394 ; 

12   Sup.   Ct.  Rep.  646).   167 
W  aters  v.  Merchants',  etc.,  Ins.  Co. 

(11    Pet.    213),    802 
Waters-Pierce  Oil  Co.  v.  Davis    (24 

Tex.  Civ.  App.  508 ;  60  S.  W.  Rep. 

453),    784 
Waters-Pierce    Oil    Co.    v.    King    (6 

Tex.  Civ.  App.  93;  24  S.  W.  Rep. 

700),  778 
Waters-Pierce    Oil    Co.    v.    McElroy 

(Tex.  Civ.  App.)    (47  S.  W.  Rep. 

272),  419 
V\  atson.  etc.,  Co.  v.  Casteel   (73  Ind. 

296),  231,  233 
Watson   v.   U.   R.   &   G.   Gravel   Co. 

(50  Mo.  App.  635),  296 
Watson  V.  Gas  Co.    (5  U.  P.  Q.  B. 

(Can.)    262),  672,  673 
Watt  V.  Equitable  Gas  Co.  (8  Super. 

Ct.    (Pa.)    618;    29    Pittsb.   L.   J. 

(N.  S.)    221;   43  W.  K  C.  215), 

235 
Watts   V.    Gantt    (42    Neb.    869;    61 

N.  W.   Rep.    104),   390 
Watts  V.   Tibbals    (6   Pa.   St.  447), 

42 
Way   V.   Reed    (6   Allen   364),    171, 

242 
Waymart  Water  Co.  v.  Wayniart  (4 

Pa.   Super.   Ct.   211),  446 
W^eaver  v.  Burr    (31  W.  Va.  736;   8 

S.  E.  Rep.  743),  92 
Webb    V.    Ohio    Gas    Fuel    Co.     (16 

Wkly.    Law    Bull.     121;     9    Ohio 

Dec.    Rep.    662),    552 
Webster    v.    Harwinton     (32    Conn. 

131),  563 
Weld    V.    Gaslight    Co.     (1     Starkie 

150).  789 
Wellington  v.  Downej^  Kerosene  Co. 

(104  Mass.  64),  785,  786 
Wells  V.  Ellis    (68  Cal.  243;   9  Pac. 

Rep.   80),   346 


Wellston   V.    Morgan    (59    Ohio    St. 

147;   52  N.  E.  Rep.  127),  453 
Welsh    V.    Beaver    Falls     (40    Atl. 

Rep.   (Pa.)   784),  496 
Welty  V.  Wise    (5  Ohio  N.  P.  SO), 

165 
Wentz's  Appeal    (106  Pa.  St.  301), 

290,   291 
Werner    v.    Ashland    Ligliting    Co. 

(84    Wis.    652;    54    N.    W.    Rep. 

996),  714 
Wesling  v.  Kroll    (78,  Wis.  636;  47 

N.  W.  Rep.  943),  193,  216 
West  v.  Bancroft,  etc.,  Co.    (158  N. 

Y.  231;  52  N.  E.  Rep.  1092),  548 
West  Chester  Gas  Co.  v.  Chester  Co. 

(30  Pa.  St.  232),  832,  839 
West  Cumberland  Iron  Co.  v.  Ken- 
yon    (L.   R.   11   Ch.  Div.   782;   48 

L.    J.    Ch.    793;    40    L.    T.    703), 

655 
\Vest   Hartford   v.   Hartford   Water 

Comrs.     (68    Conn.    323;    36    Atl. 

Rep.  786),  582 
West,    etc.,   Co.   v.    Philadelphia    (3 

Pa.  Dist.  Rep.  52),  838 
West  Ridge  Coal  Co.  v.  Van  Storch 

(5  Lack.  Leg.  N.  189;   7  Del.  Co. 

Rep.  467),   191,   261 
West    Shore   Mills    Co.   v.    Edwards 

(24  Ore.  475;  33  Pac.  Rep.  987), 

229 
\^'est    Virginia,    etc.,    Co.    v.    Ohio 

River   Pipe  Line  Co.    (22  W.  Va. 

600),    383 
West  Virginia,  etc.,  Co.  v.  Volcanic 

Oil  &   Coal  Co.    (5  W.  Va.  382), 

53,  38.3,  388 
Westerly    W.    W.    Co.    v.    Westerly 

(75   Fed.  Rep.   181;    76  Fed.  Rep. 

467).  488,  491,  496,  499 
Westerly    W.    W^    Co.    v.    Westerly 

(80    Fed.    Rep.    611),    488,    491, 

492,   496,    499 
Western    Penn.    Gas    Co.    v.    G«orge 

(161  Pa.  St.  47;  34  W.  N.  C.  332; 

28  Atl.  Rep.  1004),  153,  173,  211 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Western    vSaving    Fund    Society    v. 

Philadelpliia    (31  Pa    St.   175;  72 

Am.  Dec.  730),  559,  569 
Western    Paving,    etc.,    Co.    v.    Citi- 
zens', etc.,  Co.    (128  Ind.  525;   26 

N.   E.    Rep.   188;    28    N.    E.   Rep. 

88),   525,   544 
Western,  etc.,  Co.  v.  Rector   (85  Ky. 

294;   3  S.  W'.  Rep.  415;  9  Ky.  L. 

Rep.  3),  822,  823 
Western    Union    Telegraph    Co.    v. 

Massachusetts    (125    U.    S.    530), 

837 
Westfield  Gas,  etc.,   Co.  v.  Menden- 

hall   (142  Ind.  538;  41  N.  E.  Rep. 

1033),  423,  427,  488 
Westlake  v.  St.  Louis   (77  Mo.  47), 

602 
Westmoreland  Co.'s  Appeal   (85  Pa. 

St.  344),  287 
Westmoreland,   etc.,    Co.   v.   DeWitt 

(130    Pa.    St.    235;    18    Atl.    Rep. 

724;   29  Am.  L.  Reg.  93;   5  L.  R. 

A.  731),  32,  33,  34,  97,  106,  117, 

119,  176,  182,  212,  321,  323 
Weston   V.    Woodcock    (7   M.   &   W. 

14),  646 
Weston's   Case    (L.   R.    4    Ch.   App. 

20;  38  L.  J.  Ch.  49;  19  L.  T.  337; 

17  W.  R.  62),  352, 
Wetmore  v.   Brooklyn   Gaslight  Co. 

(42' N.  Y.  384),  549 
Wettengel  v.  Gormley    (160  Pa.   St. 

559;  28  Atl.  Rep.  934;  40  Am.  St. 

Rep.    733),   54.   73,   75,    103,   230, 

260 
Whallen    v.    Citizens'    Gaslight    Co. 

(63    N.    Y.   Rep.    317;    30   N.    Y. 

Supp.    1077),    788 
Wheeler  v.  Earl    (5  Cush.  31),   199 
Wheeler  v.  Philadelphia   (77  Pa.  St. 

338),   558 
Wheeler  v.  Traders'  Ins.  Co.   (1  Atl. 

Rep.    (N.  H.)    293),  807.  822 
Wheeler  v.   West    (71    Cal.,126;    11 

Pac.  Rep.  871),  79,  82 
Wheeling   Gas    Co.    v.    Wheeling    (8 

W.  Va.  320),  568 


Whitaker    v.    Brown     (46    Pa.    St. 

197),    329 
Whitcomb  v.  Hoyt  (30  Pa.  St.  403), 

160,  168 
White    V.    Meadville'    (177    Pa.    St. 

643;     27    Pittsb.    L.    J.     (N.    S.) 

97;    39    W.    N.    C.    102;    35    Atl. 

Rep.  695;    34  L.  R.  A.  567),  482 
White    V.    Wager    (25   N.   Y.    328), 

281 
White  V.  Western,  etc.,  Co.   tl8  W. 

N.    C.     (Pa.)     279;    6    Atl.    Rep. 

113),  801,  807 
Whitehouse    v.    Liverpool,    etc.,    Co. 

(5  C.  B.  798;  5  M.  Gr.  &  S.  798), 

578.  590 
Whitfield    V.     Bewit     (2    P.    Wms. 

240),  289 
Whitman   v.    Fayette   Fuel   Gas   Co. 

(139    Pa.    St.    492;    20    Atl.    Rep. 

1062),  255,  592,  612 
Whitmarch  v.  Charter  Oak  Fire  Ins. 

Co.    (2  Allen   581),  816 
Whitmore    v.     Empson     (23     Beav. 

313;  26  L.  J.  Ch.  364),  647 
Wichita  Gas,  etc.,  Co.  v.  Wright   (9 

Kan.    App.     730;     59     Pac.    Rep. 

1085),    729 
Wild   V.   Holt    (9   M.    &   W.   672;    1 

D.  N.  S.  876;  11  L.  J.  Exch.  285), 

49 
Wilde  V.  Waters    (16  C.  B.  637;  24 

L.  J.   C.   P.   193;    1   Jur.    (N.   S.) 

1021),  638 
Wilgus    V.    Whitehead    (89    Pa.    St. 

131),    101.   261 
Wilkes-Barre  Gas  Co.  v.  Turner    (7 

Kulp.    (Pa.)    399),  583,  612,  621, 

836 
Wilkes-Barre   Light   Co.   v.    Wilkes- 
Barre,    etc..    Co.     (4    Kulp.    47). 

491,   530,   501 
Wilkins    v.    Abell     (26    Colo.    462; 

58   Pac.  Rep.   612),   105,   353,   359 
Wilkinshurg    Gas    Co.    v.    Wilkins- 

Inirg    (25  L.  J.    (N.  S.)    42),   533 
Wilkinson    v.    Wilkinson     (59    W^is. 

557;   18  N.  W.  Rep.  528),  291 


TABLE    OF    CASES. 


(References  are  to  pages.) 
Killingwoith    ( 8    Conn. 


Willard   v. 

247),  563 
Willcock   V.    Crescent   Oi],  Co.    (184 

Pa.  St.  245;   28  PiUsb.  L.  J.    (N. 

S.)   351;  39  Atl.  Rep.  77),  844 
Willetts  V.  Brown  (42  Hun  140),  64 
Willi  V.  Dryden   (52  Mo.  319),  238 
Willis  V.  Perry    (92  la,.  297;   60  N. 

W.  Rep.   727;    26  L.  R.  A.   124), 

300 
Wills  V.  Manufacturers"  Natural  Gas 

Co.  (130  Pa.  St.  222;  18  Atl.  Rep. 

721;    5  L.   R.   A.   603),   181,   183, 

224,  266,   277 
Williams'     Appeal      ( 1      Monaghan 

(Pa.)    274),   641 
Williams    v.    Augusta    (4    Ga.    509 

[gunpowder]),   418 
Williams    v.    Bolton     (3    P.    Wras. 

268;  1  Cox  Ch.  Cas.  72),  292 
Williams  v.   Bosanquet    ( 1   Brod.  & 

Birg.  238),  2.38 
Williams   v.    Gibson    (84   Ala.   228; 

4  So.  Rep.  350),  76,  329 
Williams    v.    Guffey     (178    Pa.    St. 

342;   35  Atl.  Rep.  875),  264,  275 
Williams  v.  Ins.  Co.    (31  Me.  219), 

813 
Williams  v.  Insurance  Co.   (54  N.  Y. 

569;   13  Am.  Rep.  620),  813,  814 
Williams  v.  Kenney  (14  Barb.  629), 

333 
Williams    v.    Ladew     (171    Pa.    St. 

369;  33  Atl.  Rep.  329),  153 
Williams  v.  Lake   (2  El.  &  El.  349; 

29  L.  J.  Q.  B.  1;  6  Jur.    (N.  S.) 

45;   1  L.  T.  56;  8  W.  R.  41),  314 
Williams     v.     Medlicott      (8     Price 

496),  373 
Williams  v.  Morrison   (32  Fed.  Rep. 

177),  79 
Williams    v.    Mutual    Gas    Co.     (52 

Mich.  499;   50  Am.  Rep.  266;   18 

N.  W.  Rep.  236;  4  Am.  and  Eng. 

Corp.  Cas.  66),  576,  §79,  585,  586, 

592,    594,    601  *" 

Williams  \.   People's   Fire   Ins.   Co. 
(57  N.  Y.  274),  801,  808 


Williams  v.  Short  (155  Pa.  St.  480; 

26  Atl.  Rep.  662 ) ,  232,  327 

Williams  v.  South  Penn  Oil  Co.   (43 

S.    E.    Rep.    (W.    Va.)    214),    97, 

297 

Williams    v.    Toledo    Coal    Co.     (25 

Ore.  426;   36  Pac.  Rep.  159),  356 

Williams    v.    Vanderbilt     (145     111. 

238;  34  N.  E.  Rep.  476),  309 
Williamson    v.    Jones     (39    W.    Va. 
231;   19  S.  E.  Rep.  436;   38  L.  R. 
A.  694;  43  W.  Va.  562;   27  S.  E. 
Rep.  411),  33,  43,  280,  296,  301, 
303,  304,  305,  307,  308,  330 
Williamson    v.    Jones     (43    W.    Va. 
(562;  27  S.  E.  Rep.  411;  38  L.  R. 
A.  694;  64  Am.  St.  Rep.  891),  51, 
280,  289,  292,  293 
Williamsport  Gas  Co.,  In  re  (17  Pa. 
Co.  Ct.  Rep.  456 ;  2  Lack.  L.  News 
112;    5   Pa.  Dist.  Rep.   251),  481, 
483 
Wilson,  Ex  parte    (2  Mont.  &  Ayr. 
61;   4  Dea.  &  CWt.   143;   4  L.  J. 
(N.  S.)   Bank  24),  633.  636 
Wilson  V.  Bogle    (95  Tenn.  290;   32 

S.  W.  Rep.  386),  298 
Wilson    V.    Davis     (1    Mont.    183), 

346 
Wilson  V.  Freeman   (7  Wkly.  W.  N. 

C.    (Pa.)    33),   632 

Wilson    V.    Goldstein    (152    Pa.    St. 

524;   25  Atl.  Rep.  493),   169,  185, 

186 

Wilson  V.  Holden   (15  Q.  B.  533;  19 

L.  J.  Q.  B.  73;   14  Jur.  835),  345 

Wilson   V.    Rochester    (180   Pa.    St. 

509;  38  Atl.  Rep.  136),  482 
Wilson  V.  Tennent   (65  N.  Y.  Supp. 
852.  affirmed  61  App.  Div.  100;  70 
N.  Y.   St.  Rep.  2),  842,  588 
Wilson   V.    Youst    (43   W.   Va.   826; 
28   S.   E.  Rep.   781;    39   L.   R.   A. 
292),  32,  76,  289 
Vv^inans  v.  Peebles    (32  N.  Y.  423), 

281 
Winchester    v.    Capron     (63    N.    H. 
605),  333 


TABLE    OF    CASKS. 


(References  are  to  pages.) 


Winchester  v.  Knight    (1   P.  Wms. 

406),  277 
Windfall  Mfg.  Co.  v.  Patterson  ( 148 
Ind.  414;  47  N.  E.  Rep.  2;   37  L. 
R.  A.  381;  62  Am.  St.  Rep.  532), 
136,  389,  665,  671,  674,  675 
Windfall,  etc.,  Co.  v.  Tutewiler   (152 
Ind.  364;  53  N.  E.  Rep.  284),  389, 
394.  649 
Winfield   v.    W  infield    Gas    Co.     (37 
Kan.  24;   14  Pac.  Rep.  499),  446, 
466 
Winfield  v.  Winfield  Water  Co.    (51 
Kan.  70;   32  Pac.  Rep.  663),  461 
Winfield  Water  Co.  v.  Winfield   (51 
Kan.  70;   32  Pac.  Rep.  663),  474 
Winston  v.  Spokane  (12  Wash.  524; 

41  Pac.  Rep.  888),  450 
Winton   Coal   Co.   v.   Pancoast  Coal 
Co.  (170  Pa.  St.  437;  33  Atl.  Rep. 
110),  301 
Witcher    v.    Holland    Water    Works 
Co.    (66  Hun  619;   20  N.  Y.  560, 
affirmed  142  N.  Y.  626;  37  N.  Y. 
Rep.  565),  515,  548 
Witte  V.  Western,  etc.,   Ins.  Co.    (1 

Mo.  App.  188),  825 
Wolf  V.  Cincinnati,  etc.,  Co.  (6  Ohio 

Dec.   159),  393 
Wolf  V.   Guffey    (161    Pa.   St.   276; 

28  Atl.  Rep.  1117),  200 
Wolverhampton   R.   R.    Co.   v.   Lon- 
don,   etc.,    R.    R.    Co.     (L.    R.    16 
Eq.   433;   43   L.  J.   Ch.    131),   318 
Wolveridge  v.  Steward    ( 1   C.  &  M. 
644;    2   L.   J.   Exch.   303;    3   Tyr. 
637),  235 
Womersley  v.  Church   (17  L.  T.   (N. 

S.)    190),  661 
Wood   V.   Auburn    (87   Me.   287;    32 

Atl.  Rep.  906).  609 
Wood    V.    Gaynon     ( 1    Amb.    395 ) , 

G40 
Wood  V.  Holly  Mfg.   Co.    (100  Ala. 

660;  13  So.  Rop.  948).  363 
Wood   V.   Ixjadbitter    (13   M.   &   W. 
838),  82 


Wood   V.    Morewood    (3    Q.    B.   440, 

note),  49 
Wood  V.  N.  W.  Ins.  Co.    (46  N.  Y. 

421),  53 
Wood   V.   Wand    (3   Exch.    748;    18 
L.    J.    Exch.   305;    13   L.   T.    212; 
13  Jur.  742),  675 
Wood  County,  etc.,  Co.  v.  West  Vir- 
ginia, etc.,   Co.    (28  W.  Va.  210; 
57  Am.  Rep.  659),  33,  136,  137 
Woodard  v.  Mitchell   (140  Ind.  406; 

39  N.  E.  Rep.  437),  208 
Woodburn's    Estate     (138    Pa.     St. 
606;   21   Atl.  Rep.   16),  229,  287, 
288,   293 
Woodbmn  v.  Auburn    (87  Me.  287; 

32  Atl.  Rep.  906),  577 
Woodland  Oil   Co.  v.  Crawford    (55 
Ohio  St.  161;   36  Ohio  L.  J.  231; 
44  N.  E.  Rep.   1093;   34  L.  R.  A. 
62),    78,    92,    183,    187,   212,   235, 
271 
Woodman  v.  Metropolitan,  etc.,  Co. 
(149    Mass.   335;    21    N.   E.   Rep. 
482;  4  L.  R.  A.  213),  754 
Woodruff  V.  Bowen   (136  Ind.  431; 

34  N.  E.  Rep.  113),  408 
Woods  V.  Greensboro,  etc..  Gas  Co. 

(54  Atl.  Rep.    (Pa.)    476),  391 

Woodside  v.  Ciceroni    (93  Fed.  Rep. 

1;  35  C.  C.  A.  177),  76,  105,  166 

Woodward    v.    Delaware,    etc.,    Co. 

(121    Pa.    St.   344;    15   Atl.    Rep. 

622),  839 

Worcester  Gaslight  Co.  v.  Worcester 

(110  Mass.  353),  598 
Worksop   V.   Worksop   Gas   Co.    (22 

Gas  J.  96),  473 
Worrall    v.    Wilson     (101    la.    475; 

70  N.  W.  Rep.  619).  169 
Wragg  V.   Commercial  Gas  Co.    (33 

Gas  J.  119,  313).  665 
Wray   v.   Evans    (80   Pa.   St.    102), 

788 
Wright  V.   Brosseau    (73   111.   381), 

351 
Wright  V.  Chicago,  etc.,  Ry.  Co.   (27 
111.  App.  200),  410 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Wright  V.   Colchester   Gas   Co.    (30 

Gas  J.  336).  584,  601 
Wright  V.  McDonnell   (88  Tex.  UO; 

30  S.  \V.  Rep.  907 ) ,  639.  644 
Wright   V.    Warrior    Run    Coal    Co. 

(182    Pa.    St.    514;    41    W.    N.    C. 

179;   9  Kulp.   1;   28  Pittsb.  L.  J. 

(N.   S.)    202;   38  Atl.   Rep.  491), 

258 
Wright  V.  Stears   (48  Gas  J.  1068), 

543 
Wyandotte    Electric    Light    Co.    v. 

Wyandotte    (124  Mich.  43;   82  N. 

W.  Rep.  821),  499 


Xenia  Real  Estate  Oo.  v.  Macy  ( 147 
Ind.  568;  47  N.  E.  Rep.  147), 
255,  592,  612,  613 


"Vater    v.    Mullen     (24    Ind.    277), 

630 
Yellow    River,    etc.,    Co.    v.    Wood 

County    (81  Wis.  554;   51   X.  W. 

Rep.  1004),  833 
Yentzer  v.    Farmers',   etc..    Ins.   Co. 

(200   Pa.    St.    325;    49   Atl.    Rep. 

767).  809 
York  V.  Jones  (2  N.  H.  454),  277 
York,  etc.,  R.  R.  Co.  v.  Winans   (17 

How.  30),  527 
Youch  V.  Home.  etc..  Ins.  Co.    (Ill 

Cal.  50.".:  44  Pac.  Rep.  189;  34  L. 

R.  A.  857),  795,  814 


\oughiogheny  R.  Coal  Co.  v.  Pierce 

(153    Pa.    St.    74;    25    Atl.    Rep. 

1026),  80 
Young   V.    Boston    (104   Mass.    95), 

618 
Young  V.  Bransford    (12  Lea.  232), 

701 
Young  V.  Ellis    (91  Va.  297;   21   S. 

E.  Rep.  480),  75,  79,  219 
Young  V.  Equitable  Gas  Co.    (5  Pa. 

Super.    Ct.    Rep.    232;    28    Pittsb. 

L.   J.    (X.    S.)    75;    41    W.   X.    C. 

24),   127,  253 
Young  V.   Forest  Oil   Co.    (194   Pa. 

St.    243;    45    Atl.    Rep.    121;    30 

Pittsb.  L.   J.    (X.   S.)    221),   107, 

115,    151.    154,    182 
Young  V.   South wark,  etc.,   Co.    (69 

L.  T.  144;  41  W.  R.  622;  57  J.  P. 

806;   5  Rep.  432),  583 
Young    V.    Vandergrift    (30    Pittsb. 

Leg.  J.  (X.  S.)  39),  128,  154,  182 
Young  V.  Vandergrift  (30  Pittsb.  L. 

J.    (X^   S.)    39;    194  Pa.   St.  234; 

45  Atl.  Rep.  119).  203 
Youngblood    v.    Sexton     (32    Mich. 

406;  20  Am.  Rep.  654),  563 


Zanesville  v.  Zanesville  Gaslight  Co. 

(47   Ohio   St.    1;    23    X.    E.    Rep. 

555 ;  29  Am.  and  Eng.  Corp.  Cas. 

190).  426.  427 
Zanesville  Gaslight  Co.  v.  Zanesville 

(47   Ohio   St.   35;   23  X.   E.   Rep. 

60;  23  Wkly.  L.  Bull.  70;  29  Am. 

and  Eng.  Corp.  Cas.  190),  440 
Zouche  v.  Dalbaic    (L.  R.   10  Exch. 

177),  251 


> 


CHAPTER  I. 

HISTORICAL    SKETCH 

§1.  Petroleum  known  to  ancients. 

§2.  Early  discoveries  of  petroleum  in  United  States. 

§3.  Early  account  of  a  Western  New  York  oil  spring. 

^4.  Washington  county,  Ohio,  oil  well. 

§5.  The  first  oil  well  in  United  States. 

§6.  Other  first  oil  wells  in  United  States. 

§7.  In  what  countries  petroleum  found. 

§8.  Natural  gas  known  to  ancients. 

§9.  Early  natural  gas  in  America. 

CIO.  Sources  and  composition  of  petroleum  and  gas. 

§11.  Composition   of  petroleum. 

§12.  Composition  of  natural  gas. 

§13.  Early  attempts  at  distilling  or  refining  petroleum. 

§14.  Early  use  of  petroleum  as  a  medicine. 

§15.  Transportation. 

§16.  The  first  oil  lease. 

§17.  Early  use  of  artificial   illuminating  gas. 

^§1.     Petroleum  known  to  ancients. 

Petroleum  was  not  unknown  to  the  ancients.  It  is  related 
chemically  closely  to  asphalt  or  asphaltum.^  Asphalt  was  used 
in  cementing  the  stone  walls  of  ^NTineveh  and  Babylon,  even  in 
laying  the  famous  Tower  of  Babel ;  and  is  called  in  the  Old 
Testament  "slime  of  mortar."  Slime  pits  were  near  the  city  Is, 
the  present  Hit,  on  the  river  Is,  a  tributary  of  the  Euphrates — 

1  "  When  the  Jews  were  led  into  found   an  oil,  which  poured  on  the 

Pers'a  they  found  pits  in  which  the  hot   stone   used    in    sacrifices,    burst 

priests  concealed  the  sacred  fire  they  into    high    flames.     These    pits    the 

required     for     their     sacrifices." — 2  Jews  closed  and  applied  to  them  the 

Maccabees,  Chap.  I.     Tlie  contempo-  term  nephtar  or  nephtoj  —  a   place 

raries  of  Nehemiah,  in  after  years,  of      expiation.     Hence      our      word 

in  searching  for  this  concealed  fire,  naphtha. 


2  OIL    AXD    GAS. 

sometimes  called  the  Spring  of  Is."  This  spring  attracted  the 
attention  of  Alexander  and  Trajan.  Mention  is  made  in  the 
Old  Testament  of  fountains  and  springs  of  oil,  which  may  be 
taken  without  doubt  to  relate  to  petroleum  springs.  Asphalrnni 
is  quite  common  in  the  Dead  Sea  regions,  especially  upon  thi' 
shores  of  that  mysterious  body  of  water.  The  Egyptians  knew 
the  value  and  use  of  ]>etroleum  and  asphalt;  for  they  soaked 
the  cerements  of  the  dead  in  them,  which  has  been  one  of  the 
factors  in  the  preservation  of  the  mummies  to  the  present  day. 
A  mummy  will  readily  burn,  because  of  the  fact  that  it  was 
wrapped  in  clothes  soaked  in  ]Tetroleum  or  liquid  asphaltum.^ 
Their  terra  for  it  was  "  rock  oil  " ;  and  it  is  supposed  that  they 
got  it  near  a  place  on  western  mouth  of  the  Gulf  of  Suez,  called 
at  the  present  day  Djebel-ez-Zeit,  which  is  the  Arabic  name  for 
*'  Oil  Mountain.''  Oil  was  discovered  at  that  place  in  Feb- 
ruary, 1886.  The  oil  fountains  of  Hit  were  celebrated  among 
the  Arabs  aud  Persians.  Herodotus,  four  hundred  and  fifty 
years  before  the  Christian  Era,  makes  mention  of  the  then 
famous  Spring  of  Zante,  Zante  being  one  of  the  Ionian  Islands. 
Pliny  and  Dioscorides  speak  of  the  oil  taken  from  the  earth  at 
Agrigentum,  Sicily,  and  of  its  use  in  lamps  as  "Sicilian  Oil." 
From  time  immemorial,  near  Rivanazzano,  in  Sardinia,  small 
rills  of  oil  have  run  from  the  earth.  The  famous  Caspian 
region,  or  Baku  district,  was  well  known  to  the  ancients,  they 
making  use  of  the  oil  and  gas  of  that  region.  *  It  is  supposed 
tliat  the  famous  Greek  Fire  was  nothing  more  than  combustibles 
soaked  in  petroleum,  obtained  from  that  countiT ;  for  it  is  known 
that  Greece  received  petroleum  from  the  port  of  Phanagorin. 
In  limited  quantities  it  was  known  to  the  Chinese,  probably 
many  centuries  liefore  the  beginning  of  the  present  Era.  Their 
earliest  records  show  a  knowledge  of  it.  It  was  probably  not 
unknown  in  India  at  an  early  day,  and  to  the  Romans  when  they 
invaded  the  present  territory  of  Galicia,  of  Moldavia,  and  of 
Wallachia,  where  it  now  is  ol)tained  in  great  quantities."'^ 

2Mentiono(l     by     Herodotus,     450  -i  Thoy    used    liquid    asphaltuni    in 

B.   C.   as   eight,   days'  journey   from       laying  up  stones. 
Babylon.  *  Brannt  on  Petroleum,  20. 

5  Brannt  on  Petroleum.  2. 


HISTORICAL    SKETCH.  3 

§2.     Early  discoveries  of  petroleum  in  United  States. 

The  Jesuit  Fathers  in  this  country  in  early  times  made  men- 
tion of  burning  springs ;  which  were  nothing  more  than  oil  set 
alire  that  had  accumulated  on  the  surface  of  the  water  of  springs 
■ —  usually  what  may  be  termed  stagnant  springs.  One  of  these 
writers  Avas  a  Franciscan  missionary,  Joseph  de  la  Koche  d' 
Allion,  who  wrote  a  letter  in  1629  describing  such  a  spring,  and 
which  is  printed  in  Sagard's  Histoire  du  Canada  in  1036.''  On 
Oil  Creek,  in  Venango  County,  Pennsylvania,  were  to  be  seen  in 
the  first  half  of  the  present  century  a  number  of  pits,  fifteen  or 
twenty  feet  across,  some  circular,  some  oval,  and  some  square, 
carefully  cribbed  or  walled  up  with  timber  or  logs.  In  the  bot- 
tom of  these  pits  were  growing  trees,  centuries  old.  The  oil  had 
preserved  the  timl>er  with  which  they  were  w^alled.  The  theory 
has  been  advanced  that  they  were  constructed  by  that  mysterious 
race  which  preceded  the  American  Indian,  who  inhabited  that 
region  at  the  first  discovery  of  America  by  the  Europeans;  and 
that  that  race  was  the  same  as  the  one  wdiich  operated  the  copper 
mines  of  the  Lake  Superior  country.^  As  early  as  1750  a 
French  officer  located  at  Fort  Duquesne  (the  present  site  <  f 
Pittsburg),  in  a  letter  to  General  Montcalm,  then  located  at 
Quebec,  described  oil  found  in  a  region  which  was  evidently 
the  region  of  Oil  Creek  as  now  known. ^ 

"  While  descending  the  Allegany,"  said  he,  '"  fifteen  leagues 
below  the  mouth  of  the  Connewango,  and  three  above  the  Ve- 
nango, we  were  invited  by  the  chief  of  the  Senecas  to  attend  a 
religious  ceremony  of  his  tribe.  We  landed,  and  drew  up  our 
canoes  on  a  point  where  a  small  stream  entered  the  river.  The 
tribe  appeared  unusually  solemn.  We  marched  up  the  stream 
about  half  a  league,  where  the  company,  a  large  band  it  ap- 
peared, had  arrived  some  days  before  us.  Gigantic  hills  bcQirt 
us  on  every  side.   The  scene  was  really  sublime.   The  great  chief 

6  On  an  old  map  of  1670,  yet  pre-  die    Colonies    of    America."    etc.,    hy 

served,    is    marked    a    "Fontaine    do  Lewis  Evans,  published  at  Philadel- 

Bitume,"    located    near    the    present  phia  in  1755,  the  existence  of  petro- 

village  of  Cnlia,  New'Work.  leuni   in  the  present  States  of  both 

■^  Brannt  on   Petroleum.   4.  Pennsylvania  and  Ohio  is  indicated. 

8  On  "A  General  Map  of  the  Mid- 


4  OIL    AND    GAS. 

then  recited  the  conquests  and  heroism  of  their  ancestors.  The 
surface  of  the  stream  was  covered  with  a  thick  scum,  which, 
upon  applying  a  torch  at  a  given  signal,  burst  into  a  complete 
conflagration.  At  the  sight  of  the  flames  the  Indians  gave  forth 
the  triumphant  shout  that  made  the  hills  and  valleys  re-echo 
again.  Here,  then,  is  revived  the  ancient  fire-worship  of  the 
East ;  here,  then,  are  the  children  of  the  Sun."  ^ 

In  1784  Peter  Kalm,  a  celebrated  Swedish  botanist  landed  in 
this  country,  and  spent  three  years  in  travel.  In  1753  and  1761 
he  published  an  account  of  his  travels,  in  which  he  described  the 
oil  springs  of  Western  Pennsylvania.  In  the  latter  part  of  the 
eighteenth  century  in  the  correspondence  of  that  time,  frequent 
mention  is  made  of  oil  observed  in  springs  and  floating  on  water 
in  Western  Pennsylvania,  Eastern  Ohio,  Western  Virginia,  and 
Eastern  Kentucky.^"  It  is  said  that  General  Washington,  in 
1775,  when  visiting  the  Kanawha  Valley,  set  aside  to  the  public 
a  square  mile  of  land,  on  which  was  located  a  gas  well,  above 
Salt  Lick ;  but  a  defect  in  the  deed,  after\vards  discovered,  ren- 
dered the  conveyance  void.  As  early  as  1814,  in  Washington 
County,  Ohio,  thirty  miles  north  of  Marietta,  in  sinking  a  salt 
well,  both  petroleum  and  gas  were  found.  A  similar  well  was 
bored  in  1819  in  Wayne  County,  Kentucky,  and  it  yielded  so 
much  black  petroleum  that  it  was  abandoned.  In  1829  a  salt 
well  bored  near  Burkesville,  Cumberland  County,  of  the  same 
State,  yielded  great  quantities  of  oil,  estimated  to  amount  to 
fifty  thousand  barrels  up  to  1860,  most  of  which  was  lost.  Some 
of  it  was  sold  as  a  medicine  under  the  name  of  ''American  Oil." 
In  1840  a  well  at  this  place  spouted  oil  at  the  rate  of  seventy- 
five  gallons  a  minute  for  a  short  period.  In  1857  oil  was  dis- 
covered by  one  Shaw,  in  Enniskillen  township,  in  the  Province 
of  Western  Ontario ;  and  later  a  well  was  dug  which  proved  to 
be  a  flow'ing  one  at  the  rate  of  fifty-five  gallons  a  minute.  The 
first  flowing  well  w^as  discovered  January  11,  1862,  on  Black 
Creek,  of  that  to"svnship.     In  1854  petroleum  springs  were  dis- 

!>  Henry's      History     of.     Petrole-  in  North  America,"  in  17SS.  speaks 

urn,  11.  at  length   of  petroleum   in   Pennsyl- 

10  Loskiel,  in  his  "PHstory  of  the  vania  and  Ohio.     See  the  account  in 

United  Brethren  Among  the  Indians  Brannt,  p.  5. 


HISTORICAL    SKETCH.  5 

covered  fifteen  miles  west  of  Tulare  Lake,  California,  by  the 
United  States  Government  officers. 

§3.     Early  account  of  a  western  New  York  oil  spring. 

As  early  as  1833  Prof.  Benjamin  Silliman,  Jr.,  of  Yale  Col- 
lege, visited  an  oil  spring  or  pool  in  the  western  part  of  Alle- 
gany County,  ISTew  York,  and  wrote  a  very  interesting  account 
of  his  visit  and  the  result  of  his  examination.  The  oil  taken 
from  this  spring  or  pool  was  sold  as  "  Seneca  Oil  "  for  medicinal 
purposes. 

"  The  Oil  Spring,  as  it  is  called,"  said  he,  "  is  situated  in  the 
western  part  of  the  County  of  Allegany,  in  the  State  of  New 
York.  This  county  is  the  third  from  Lake  Erie  on  the  south 
line  of  the  State,  the  counties  of  Cattaraugus  and  Chautauqua 
lying  west,  and  forming  the  southwestern  termination  of  the 
State  of  'New  York.  The  Spring  is  very  near  the  line  which 
divides  Allegany  and  CattaraugTis.  Being  in  the  County  of  Al- 
legany, I  was  indebted  to  the  kindness  of  a  friend,  who  on  the 
6th  of  September  took  me  from  Angelica  to  the  Spring.  After 
crossing  the  Genesee  River,  our  ride  was  to  the  town  of  Friend- 
ship, six  miles ;  then  to  Cuba,  eight  miles ;  and  thence  into  the 
township  of  Hinsdale,  three  and  a  half  miles,  making  seven- 
teen and  a  half  miles  from  Belvidere,  the  county-seat  of 
Phillip  Church,  Esq.,  and  twenty-one  miles  from  Angelica 
village.  The  place  Avill  be  found  without  difficulty  by  taking 
a  guide  at  Hick's  tavern,  which  is  on  the  comer  of  the  road 
to  Cuba  where  it  is  intersected  by  the  road  to  Warsaw,  two 
miles  west  of  Cuba.  The  last  half  mile  is  in  the  forest ;  and  a 
road  is  cut,  for  the  greater  part  of  the  way,  through  the  woods ; 
but  the  path  becomes  finally  an  obscure  foot-track  in  which  a 
stranger  Avithout  a  guide  might  easily  lose  his  way,  or  at  least 
fail  of  finding  the  object  of  his  search.  The  country  is  rather 
mountainous ;  but  the  road  running  between  the  ridges  is  very 
good,  and  leads  through  a  cultivated  region  rich  in  soil  and 
picturesque  in  sceifery.  Its  geological  character  is  the  same 
with  that  which  is  known  to  prevail  in  this  western  region ;  a 
silicious  sandstone,  with  shale,  and  in  some  places  limestone  is 


6  OIL  A^D  GAS. 

the  immediate  basis  of  the  couiitrv.  The  sandstone  and  shale* 
(the  limestone  I  did  not  see)  lie  in  nearly  horizontal  strata. 
The  sandstone  is  nsnally  of  a  light  gray  color,  and  both  it  and 
the  shale  abonnd  with  entrocites,  encrinites,  corallines,  terebra- 
tula,  and  other  religni^e,  characteristic  of  the  secondary  tran- 
sition formation.  The  Oil  Spring  or  fountain  rises  in  the  midst 
of  a  marshy  gronnd.  It  is  a  muddy  and  dirty  pool  of  about 
eighteen  feet  in  diameter,  and  is  nearly  circular  in  form.  There 
is  no  outlet  above  ground,  no  stream  flowing  from  it ;  and  it  is  of 
course  a  stagnant  water,  with  no  other  circulation  than  that 
which  springs  from  the  changes  of  temperature  and  from  the  gas 
and  jDietroleum  that  are  constantly  rising  on  the  surface  of  the 
pool.  The  "svater  is  covered  with  a  thin  layer  of  petroleum  or 
mineral  oil,  giving  it  a  foul  appearance  as  if  coated  with  dir.ty 
molasses,  having  a  yellowish-brown  color.  Every  part  of  the 
water  was  covered  by  this  film,  but  it  had  nowhere  the  irradiance 
which  I  recollect  to  have  observed  at  St.  Catherine's  well, 
a  petroleum  fountain  near  Edinburgh  in  Scotland.  There  the 
water  was  pellucid,  and  the  hues  produced  by  the  oil  were  bril- 
liant, giving  the  whole  a  beautiful  appearance.  The  difference 
is,  however,  easily  accounted  for.  St.  Catherine's  well  is  a 
lively,  flowing  fountain,  and  the  qiumtity  of  petroleum  is  only 
sufficient  to  cover  it  partially,  while  there  is  nothing  to  soil  the 
stream ;  in  the  present  instance,  the  stagnation  of  the  water,  the 
com.parative  abundance  of  the  petroleum  and  the  mixture  of 
leaves  and  sticks  and  other  productions  of  a  dense  forest  preclude 
any  beautiful  features.  There  are,  however,  upon  this  water, 
here  and  there,  spots  of  what  seems  to  be  a  purer  petroleum  prob- 
ably recently  risen,  which  is  free  from  mixture,  and  which  has 
a  bright  brownish-yellow  appearance  —  lively  and  sparkling. 
Were  the  fountain  covered  entirely  with  this  purer  production, 
it  would  be  beautiful.  We  w^re  informed  that  when  the  foun- 
tain is  frozen,  there  are  always  some  air  holes  left  open,  and  that 
in  these  petroleum  collects  in  unusual  abundance  and  purity, 
having  distinctly  the  beautiful  appearance  wdiich  has  just  been 
mentioned  as  now  occurring  here  and  there  upon  the  water. 
The  cause  of  this  is  easily  understood.  The  petroleum  bping 
protected  by  the  ice  from  the  impnrities  Avhich  at  other  times 


HISTORICAL    SKETCH.  7 

fall  into  it,  escajDes  coiitamiuation,  and  being  diverted  to  the 
air  holes  both  by  its  lightness  and  by  the  gas  which  mixes  with 
it,  collects  there  in  greater  quantity  and  purity.  All  the  sticks 
and  leaves,  and  the  ground  itself  around  the  fountain,  are  ren- 
dered more  or  less  adhesive  by  the  petroleum.  They  collect  the 
petroleum  by  skimming  it  like  cream  from  a  milk-pan.  For 
this  purpose  they  use  a  broad,  fiat  board,  made  thin  at  one  edge 
like  a  knife.  It  is  moved  flat  upon  and  just  under  the  surface 
of  the  water,  and  is  soon  covered  by  a  coating  of  petroleum 
which  is  so  thick  and  adhesive  that  it  does  not  fall  off,  but  is  re- 
moved by  scraping  the  instrument  upon  the  lip  of  a  cup.  It  has 
then  a  very  foul  appearance  like  very  dirty  tar  or  molasses ;  but 
it  is  purified  by  heating  it,  and  straining  it  while  hot  through 
flannel  or  other  woolen  stufl^.  It  is  used  by  the  people  of  the 
vicinity  for  sprains  and  rheumatism  and  for  sores  u|X)n  their 
horses.  It  is  not  monopolized  by  any  one,  but  is  carried  away 
freely  by  all  who  care  to  collect  it,  and  for  this  purpose  the 
spring  is  frequently  visited.  I  could  not  ascertain  how  much  is 
annually  obtained.  But  the  quantity  is  considerable.  It  is  said 
to  rise  more  abundantly  in  hot  weather  than  in  cold.  Gas  is 
constantly  escaping  through  the  water,  and  appears  in  bubbles 
upon  the  surface.  It  becomes  much  more  abundant,  and  rises  in 
large  volumes  whenever  the  mud  at  the  bottom  is  stirred  by  a 
pole.  We  had  no  means  of  collecting  or  of  firing  it;  but  there 
can  be  no  doubt  that  it  is  the  carburetted  hydrogen  —  probably 
of  the  lighter  kind,  but  rendered  heavier  and  more  odorous  by 
holding  a  large  portion  of  the  petroleum  in  solution.  Whenever 
it  is  examined  we  should  expect,  of  course,  to  find  carbonic  acid 
gas  mingled  with  it,  and  not  improbably  ozate  or  nitrogen.  We 
could  not  learn  that  any  one  had  attempted  to  fire  the  gas  as  it 
rises,  or  to  kindle  the  film  of  petroleum  u]X)n  the  water.  We 
were  told  that  an  intoxicated  Indian  had  fallen  into  the  pool  and 
been  drowned  many  years  ago,  but  that  his  body  had  never  been 
recovered.  The  story  may  he  true,  and  if  true,  it  would  be  a 
curious  inquiry  whether  the  antiseptic  properties  of  petroleum 
so  well  exemplified  m  the  Egvntinn  mmimies  may  not  have  pre- 
served his  body  from  putrefnction.  The  history  of  this  spring 
is  not  distinctly  knoAvn.      The   Indians   were  well   acquainted 


8  OIL  AND  GAS. 

with  it,  and  a  square  mile  around  it  is  still  reserved  for  tlie 
Seneeas.  As  to  the  geological  origin  of  the  spring,  it  can 
scarcely  admit  of  a  doubt  that  it  rises  from  beds  of  bituminous 
coal  below.  At  what  depth  we  know  not,  but  probably  far  down. 
The  formation  is  doubtless  connected  with  tlie  bituminous  coal 
of  the  neighboring  counties  of  Pennsylvania  and  of  the  west 
rather  than  with  the  anthracite  beds  of  the  central  parts  of 
Pennsylvania."  " 

§4.     Washington  county,  Ohio,  oil  well. 

An  account  was  given  in  1833  of  the  Washington  County, 
Ohio,  well,  by  Dr.  S.  P.  Iliklreth,  of  Marietta,  which  is  of  un- 
usual interest  at  the  present  day. 

"  The  greater  abundance  of  stone  coal  in  this  locality,"  said 
he,  "  than  in  that  of  the  Muskingum,  gives  it  a  decided  advan- 
tage in  the  elaboration  of  jD^troleum.  On  the  latter  river  the 
wells  afford  but  little  oil,  and  that  only  during  the  time  the 
process  of  boring  is  going  on.  It  ceases  soon  after  the  wells  are 
completed,  and  yet  all  of  them  abound  more  or  less  in  gas.  A 
well  on  Duck  Creek,  about  thirty  miles  north  of  Marietta, 
owned  by  Mr.  McKee,  furnishes  tlie  greatest  quantity  of  any  in 
this  region.  It  was  dug  in  the  year  1814,  and  is  four  hundred 
and  seventy-five  feet  in  depth.  Salt  water  was  reached  at  one 
hundred  and  eighty-five  feet,  but  not  in  sufficient  quantity. 
However,  no  more  water  was  found  below  this  depth.  The 
rocks  ]\Tssed  were  similar  to  those  on  the  ^luskingum  Piver, 
above  the  flint  stratum,  or  like  those  between  the  flint  and  salt 
deposits  at  McConnellsville.  A  bed  of  coal  two  yards  in  thick- 
ness was  found  at  the  depth  of  one  hundred  feet,  and  gas  at  one 
hundred  and  forty-four  feet,  or  forty-one  feet  above  the  salt 
rock.  The  hills  are  sandstone,  based  on  lime,  one  hundred  and 
fifty  or  two  hundred  feet  in  height,  with  abundant  beds  of  stone 
coal  near  their  feet.  The  oil  from  this  well  is  discharged  period- 
ically, at  intervals  of  from  two  to  four  days,  and  from  three  to 

11  American  Journal  of  Science, 
18.33,  set  out  in  full  in  Henry's  His- 
tory of  Petroleum,  pp.  12-19. 


HISTORICAI.    SKETCH.  9 

six  hours'  duration  at  each  period.  Great  quantities  of  gas  ac- 
company the  discharges  of  oil,  which  for  the  first  few  years 
amounted  to  from  thirty  to  sixty  gallons  at  each  eruption.  The 
discharges  at  this  time  are  less  frequent  and  diminished  in 
amount,  affording  only  about  a  barrel  per  week,  which  is  worth 
at  the  well  from  fifty  to  seventy-five  cents  a  gallon.  A  few  years 
ago,  when  oil  was  most  abundant,  a  large  quantity  had  been  col- 
lected in  a  cistern  holding  thirty  or  forty  barrels.  At  night  some 
one  engaged  about  the  works  approached  the  well-head  with  a 
lighted  candle.  The  gas  instantly  became  ignited,  and  commu- 
nicated the  flames  to  the  contents  of  the  cistern,  which,  giving 
way,  suffered  the  oil  to  be  discharged  down  a  short  declivity 
into  the  creek,  where  the  w^ater  passes  with  a  rapid  current  close 
to  the  well.  The  oil  still  continued  to  burn  most  furiously,  and 
spreading  itself  along  the  surface  of  the  stream  for  half  a  mile 
in  extent,  shot  its  flames  to  the  tops  of  the  highest  trees,  exhibit- 
ing the  novel  and  perhaps  never  before  witnessed  spectacle  of  a 
river  actually  on  fire."  ^" 

§5.     The  first  oil  well  in  TJnited  States. 

In  1853  George  H.  Bissell  saw  a  bottle  of  crude  petroleum  in 
the  ofiice  of  Professor  Crosby,  of  Dartmouth  College.  On 
examining  it,  he  at  once  perceived  its  true  value.  He  was  en- 
gaged in  the  practice  of  law  in  New  York  City  with  J,  G. 
Eveleth ;  and  he  proposed  to  his  partner  that  they  proceed  at 
once  to  Titusville  and  inspect  the  territory.  The  result  of  this 
visit  was  that  they,  in  1854,  purchased  one  hundred  and  five 
acres  of  Brewer,  Watson  &  Company,  and  leased  another  tract 
of  about  the  same  size  for  ninety-nine  years,  for  five  thousand 
dollars.  The  deed  bore  date  of  ^N'ovember  10,  1854;  and  the 
land  was  situated  on  Oil  Creek,  in  Cherrytree  Township,  Ve- 
nango County,  and  covered  the  Island  situated  at  the  junction 
of  Pine  and  Oil  Creeks.  On  December  30,  1854,  Jonathan  G. 
Eveleth,  George  H.  Bissell,  James  H.  Salisbury  and  Dexter 
A.  Hawkins  of  ISTe^  York,  Francis  B.  Brewer  of  Titusville  and 

1-  American  Journal  of  Science,  Henry's  History  of  Petroleum,  pp. 
July,  1833,  set  out  nearly  in  full  in       21-26. 


10  OIL  AND  GAS. 

Anson  Sheldon  of  Xew  Haven,  Connecticut,  organized  and  in- 
■corporated  the  Pennsylvania  Rock  Oil  Company,  the  first  oil 
company  incorporated  in  America.  On  January  16,  1855,  the 
territory  above  described  was  leased  to  the  new  oil  company. 
Altliougii  the  new  company  had  its  leases,  there  was  an  uncer- 
tainty how  the  oil  should  be  developed ;  and  the  enterprise  was 
allowed  to  drag.  Professor  Silliman  had  been  given  two  hun- 
dred shares  of  stock  in  tlie  new  company,  in  order  to  make  him 
president  of  it;  but  owing  to  the  small  amount  of  petroleum 
obtainable,  he  never  expected  much  to  come  of  the  venture. 
Speaking  of  the  plan  of  development,  Mr.  Henry  says :  "  The 
idea  came  from  another  quarter,  and  was  suggested  by  an  inci- 
dent as  trifling  as  that  which  disclosed  the  law  of  gravitation. 
While  seeking  shelter  beneath  the  awning  of  a  Broadway  drug 
store  one  scorching  day  in  the  summer  of  1856,  Mr.  Bissell's 
eye  fell  upon  a  remarkable  show-bill  lying  beside  a  bottle  of 
^  Kier's  Petroleum,'  in  the  window.  His  attention  was  arrested 
by  the  singularity  of  displaying  a  four  hundred  dollar  bank  note 
in  such  a  place ;  but  a  closer  look  disclosed  to  him  the  fact  that  it 
was  only  an  advertisement  of  a  substance  in  which  he  was  deeply 
interested.  He  stepped  in,  and  requested  permission  to  examine 
it.  The  druggist  took  it  from  the  window,  and,  having  plenty  of 
them,  told  him  to  keep  it.  For  a  moment  he  scanned  it,  scrutin- 
izing the  derricks,  and  remarking  the  depth  from  which  the  oil 
was  drawn,  when  instantly,  like  an  inspiration,  it  flashed  upon 
him  that  this  was  the  way  their  lands  must  be  developed  —  ]>y 
artesian  wells."  Nearly  two  years  were  allowed  to  elapse  before 
arrangements  were  completed  which  enabled  the  Oil  Company 
to  send  out  a  man  to  its  leased  territory  to  begin  o]3erati<>ns. 
They  selected  Mr.  E.  L.  Drake,  of  New  Haven,  conductor  on  a 
passenger  railway  train,  who  came  to  be  known  in  the  history  of 
oil  operations  as  "  Colonel  Drake,"  to  l>egin  operations.  He 
arrived  in  the  future  oil  territory  about  ]\ray  1,  1858.  Drake 
faced  many  difficulties  when  he  arrived  at  the  field  of  his  future 
operations,  among  which  was  the  want  of  ready  money,  the 
difficulty  of  finding  suitable  operators,  and  the  novelty  of  the 
scheme.  ^Ir.  Kier,  the  patent  medicine  man  of  Pittsburii.  hnd 
recommended  to  Mr.  Bissell  "  Uncle  Billv  Smith  "  and  his  two 


HISTORICAL    SKETCH.  11 

•sons  as  suitable  men ;  and  tliey  were  brought  to  Titusville  in 
June,  1859,  when  operations  began.  "Aggravating  delays  fol- 
lowed," says  Mr.  Henry.  "  In  artesian  boring  it  is  necessary  to 
begin  on  the  rock  to  drill.  This  had  been  previously  done  by 
digging  a  common  well-hole  and  cribbing  it  up  with  timber. 
When  the  rock  is  within  a  few  feet  of  the  surface  it  is  still  the 
cheapest  and  easiest  method,  but  in  some  localities  to  do  so  would 
be  practically  impossible.  They  started  to  dig  a  hole,  but  it  so 
persistently  caved  in  and  filled  with  water  when  they  got  a  few 
feet  below  the  surface,  that  Drake  determined  to  give  it  up  and 
try  an  experiment  that  had  suggested  itself  to  his  mind.  This 
was  the  driving  of  an  iron  tube  through  the  quicksand  and  clay 
to  the  rock.  If  this  is  exclusively  his  own  invention,  which  is 
probable,  it  is  a  pity  he  did  not  procure  a  patent  on  it.  The 
royalty  would  have  afforded  him  at  least  a  competency,  though 
the  driving  pipe  is  not  so  much  in  use  as  formerly."  The  opera- 
tors in  the  oil  region  have  had  the  benefit  of  this  invention  with- 
out any  return,  unless  indeed  we  except  the  good  feeling  which 
prompted  them  to  send  him  a  present  of  $1,200,  when  they 
heard  he  Avas  sick  and  in  need.  "  The  pipe  was  successfully 
driven  to  the  rock  thirty-six  feet,  and  about  the  middle  of  August 
the  drill  was  started.  The  drillers  averaged  about  three  feet  a 
day,  making  slight  '  indications  '  all  the  way  down.  Saturday 
afternoon,  August  28th,  1859,  as  Mr.  Smith  and  his  boys  were 
about  to  quit  for  the  day,  the  drill  dropped  into  one  of  those 
crevices,  common  alike  in  oil  and  salt  borings,  a  distance  of 
about  six  inches,  making  the  total  depth  of  the  whole  well  691/2 
feet.  They  withdrew  tlie  tools,  and  all  went  home  till  Monday 
morning.  On  Sunday  afternoon,  however,  '  Uncle  Billy  '  went 
down  to  the  well  to  reconnoitre,  and  ]ieering  in  he  could  see  a 
fluid  within  eight  or  ten  feet  of  the  surface.  He  plugged  one 
end  of  a  bit  of  tin  water  spout  and  let  it  do^vn  with  a  string.  He 
drew  it  up  filled  with  petroleum.  That  night  the  news  reached 
the  village,  and  Drake,  when  he  came  down  next  morning  bright 
and  early,  found  the  old  man  and  his  boys  proudly  guarding  the 
S|X)t,  with  several  barrels  of  petroleum  standing  about.  The 
pump  was  at  once  adjusted,  and  the  well  commenced  producing 
at  the  rate  of  about  twenty-five  barrels  a  day.     The  news  spread 


12  OIL    AND    GAS. 

like  lightning.  The  village  was  wild  with  excitement.  The 
country  people  round  about  came  pouring  down  to  see  the  won- 
derful well.  Mr.  Watson  jumped  on  a  horse  and  hurried 
straightway  to  secure  a  lease  of  the  spring  on  the  McClintock 
farm  near  the  mouth  of  the  creek.  Mr.  Bissell,  who  had  made 
arrangements  to  be  informed  of  the  result,  by  telegraph,  bought 
up  all  the  Pennsylvania  rock-oil  stock  it  was  possible  to  get  hold 
of,  soon  securing  most  of  that  owned  in  ^ew  Haven,  and  four 
days  afterward  was  at  the  well."  ^^  "  This  memorable  strike," 
says  Crew,  "  ushered  in  the  Petroleum  Era."  ^* 

§6.     Other  first  oil  wells  in  United  States. 

Naturally  this  great  "find"  of  oil  created  tremendous  excite- 
ment, and  immediately  suggested  the  putting  down  of  other 
wells.  The  second  well  w^as  put  down  in  February,  1860,  by- 
Barnsdal,  Meade  and  Rouse,  to  a  depth  of  one  hundred  and 
sixty  feet,  resulting  in  a  production  of  forty  to  fifty  barrek 
daily.  This  well  was  on  the  Watson  Flats,  below  Titusville. 
The  third  well  was  located  on  the  afterwards  famous  McClintock 
farm.  It  was  completed  in  the  spring  of  1860,  and  was  sunk  by 
a  Mr.  Angier  for  Brew^er,  Watson  and  Company.  These  wells 
had  to  be  pumped.  The  first  flowing  well  was  produced  in  the 
summer  of  1860,  on  the  Buchanan  farm  near  Rouseville,  called 

13  Henry's  History   of  Petroleum.       Titusville,  who  gave  him  his  dinner 

14  Crew  on  Petroleum,  142.  and  furnished  him  money  to  return 
Colonel  Drake  made  considerable       home.  On  arriving  at  Titusville  this 

money  in  oil  investments,  but  lost  it  friend  raised  for  him  $4,200  as  a 
all  in  New  York  City  speculating  in  present.  With  the  proceeds  of  this 
oil  stocks.  Becoming  an  invalid,  he  sum  the  family  were  enabled  to  liv*; 
was  taken  by  his  wife  to  Vermont,  plainly  but  comfortably  for  several 
with  their  children,  and  afterwards  years.  They  settled  in  Bethlehem, 
to  the  highlands  of  New  Jersey,  in  Pa.,  and  in  1873  that  State  providea 
order  that  he  could  have  the  benefit  for  him  a  pension  of  $1,500  a  year 
of  the  sea  breeze.  They  lived  in  ab-  for  life,  and  in  case  his  wife  sur- 
ject  poverty,  his  wife  supporting  the  vived  him,  the  pension  to  be  con- 
family  with  her  needle.  With  an  ef-  tinned  to  her  during  her  life.  Re- 
fort  she  one  day  raised  forty  cents  publics  are  not  always  ungenerous; 
to  enable  him  to  go  to  New  York  nor  are  employers  who  reap  vast  for- 
City  to  see  if  he  could  not  find  some-  tvmes  by  the  labors  of  their  servants 
thing  he  could  do  or  secure  some  aid.  always  generous. 
He   met   an   old    acquaintance   from 


HISTORICAL    SKETCH.  13 

the  "  Curtis  "  well,  but  it  soon  filled  with  Avater  and  ceased  to 
flow.  The  first  permanent  flowing  well  w^as  situated  on  the 
Upper  McElhenny  Farm,  and  was  completed  in  June,  1861,  by 
Messrs.  Phillip  and  Company.  It  was  four  hundred  feet  deep, 
and  produced  three  hundred  barrels  per  day  for  fifteen  months, 
before  it  ceased  to  flow.  The  celebrated  ''  Phillip's  Well "  was 
situated  on  the  Tarr  farm,  and  was  completed  ^N^ovember  14, 
1861.  It  was  a  flowing  well  producing  three  thousand  barrels 
daily,  one  day  producing  3,940.  The  "  Empire  Well  "  produced 
the  same  amount.  Wells  ivere  put  down  after  August,  1859,  as 
ra])idly  as  the  crude  means  of  drilling  them,  and  the  remoteness 
from  supplies,  would  permit.  In  September  of  that  year  crude 
oil  brought  twenty  dollars  a  barrel  in  the  oil  region,  but  in  No- 
vember, 1861,  it  was  only  five  cents,  the  lowest  oil  ever  sold.  In 
January,  1863,  ten  cents.  This  was  due  to  the  lack  of  facilities 
to  transport  it.  After  better  facilities  had  l>een  employed  to  get 
the  crude  oil  to  market  the  price  arose,  imtil  July,  1864,  it 
brought  fourteen  dollars  a  barrel.^^ 

§7.     In  what  countries  petroleum  found. 

It  is  diflScult  to  name  all  the  countries  in  which  petroleum  has 
been  discovered.  It  was  known  in  ancient  times  that  oil  existed 
in  the  Echigo  province  of  Japan,  on  the  Japanese  Sea.  The 
springs  there  were  called  the  "  Evil  Smelling  Springs."  Oil  is 
still  found  in  that  province  in  gi'eat  quantities.  In  Java  there 
were  in  1879  at  least  one  hundred  wells.  In  Borneo  in  1899 
was  known  a  considerable  field  of  oil,  some  of  which  was  then 
worked.  In  Sumatra,  in  1898,  it  w'as  reported  that  the  field 
was  giving  out.  In  Bunnah  are  ancient  oil  wells,  and  many 
wells  on  the  Irrawaddy  River  are  in  active  operation.     Xear  the 

15  In  1854  it  sold  for  $1  a  gallon.  500  barrels  daily  ^ve^e  taken  out  of 

From  1859  to  1876  it  has  been  esti-  the   wells    in    Ohio    and   West   Vir- 

niated  that  10,500  wells  were  drilled  ginia.     Tlie     two     wells     at     Terre 

alone  in  Pennsylvania ;   and  from  a  Haute,   Indiana,   in  that  year   only 

territory  of  an  actual  area   of  less  produced  27  barrels  per  day.     They 

than  three  miles  on  ^il   Creek  not  were  the  only  oil  bearing  wells  in 

less    than    $110,000,000    of    oil    had  that  State, 
been    produced.     In    1876    not    over 


14  OIL    AND    GAS. 

Bolan  Pass  in  India  petroleum  was  discovered  in  1885 ;  and  at 
Sibi  on  the  northwest  frontier.  It  is  also  found  in  the  Punjab 
regions,  between  Cashmere  and  CabuL  In  Persia  at  Talish  a 
petroleum  spriiig  has  recently  been  discovered.  On  the  eastern 
side  of  the  Caspian  Sea,  on  the  Taman  peninsula  are  vast  depos- 
its of  oil ;  while  on  the  western  shore,  immediately  opposite,  is 
the  famous  Baku  district  of  Russia,  once  thought  inexhaustible 
in  both  its  oil  and  gas,  but  now  showing  signs  of  failure.^*'  On 
the  shore  of  the  Red  Sea,  at  Djmsah,  in  the  Orange  Free  State, 
and  in  Algiers,  of  Africa,  oil  is  found  in  considerable  quantities. 
Wells  exist  at  Baico,  Tintca  and  Campina  in  Roumania,  with  a 
capacity  in  1890  of  one  thousand  tons  daily.  Galicia  is  perhaps 
the  greatest  oil  producing  country  of  Europe.  Oil  is  found  in 
Moldavia,  Wallachia,  Albania  and  Dalmatia.  It  is  found  near 
Piacenza  and  Veleja,  Italy.  As  we  have  already  seen,  oil  is 
found  in  Sicily,  in  the  Ionian  Islands,  probably  at  Genoa  and 
in  Sardinia,  though  in  small  quantities.  It  is  also  found  in  Al- 
sace,^^  in  the  valley  of  the  Rhine  near  the  village  of  Schwatwil- 
ler,  having  been  discovered  as  early  as  1835  ;  also  in  Hanover,  at 
Luneberg  heath,  south  of  Hamburg,  near  Ilolle,  in  the  Dithmer- 
schen,  Schleswig-Holstein,  at  Lobsaun  and  Bechelbronn ;  ^*  and 
in  very  small  quantities  in  South  France  near  the  Pyrennes. 
Oil  has  been  drawn  from  a  well  near  Edinburg,  Scotland,  for 
many  years ;  and  we  have  already  noted  that  it  was  known  in 
Derbyshire,  England,  although  in  very  small  quantities.  It  has 
also  been  found  at  Worsley,  at  Wigan  and  West  Leigh  in  Lanca- 
shire, and  at  Coalbrookdale  and  Wellington  in  Shropshire,  but 
never  in   commercial  quantities.      Small  quantities  have  been 

16  Described  by  Masudi,  who  died  the  mange.     People  come  from  vast 

in  950.  distances  to  fetch  it,  for  in  all  coun- 

"  On   the    confines   towards   Geor-  tries    round    about    they    have    no 

giana,"  says  Marco  Polo,  "there  is  other  oil."     1.  Yule-Cordier  edition 

41   fountain   from   which  '  oil   springs  of  Marco  Polo's  travels   (ed.  1903), 

5n   great  abundance,   insomuch   that  p.  49.    This  was  written  about  1272, 

■a    hundred     ship    loads     might    be  and     describes     the     now     famous 

Inken    from    it    at    one    time.     This  Baku    district. 

■oil    is  not   good   to   use   with    food,  i7  Used  in  the  eighteenth  century, 

but   'tis  good   to  burn,   and   is  also  is  A   deep   shaft   in   search   of  oil 

used    to    anoint    camels    that    have  was  dug  in  1735. 


llISTORICAI>    SKETCH.  15 

discovered  in  recent  years  in  Australia  '''  and  in  ISGO  in  !New 
Zealand.  At  a  place  called  Taranki,  in  the  latter  island,  natural 
gas  escapes  from  the  ground.  Oil  is  also  found  in  the  Hawaiian 
Islands.  The  oil  lands  of  Peru  are  quite  extensive  in  area,  lying 
on  the  coast  near  the  Pacific  Ocean.  It  is  likewise  found  in  the 
Argentine  Republic  and  in  Bolivia.  It  is  also  found  in  great 
quantities  in  Ecuador,  having  been  discovered  by  a  priest  in  the 
eighteenth  century.  Xear  Tocuyo,  Cap  a  dare  and  Curamich- 
ate,  Venezuela,  petroleum  is  likewise  found.  Small  petroleum 
springs  exist  near  Havana,  Holquin  and  Mayri,  of  Cuba,  in 
Santo  Domingo,  Trinidad  and  the  Barbadoes.  Xear  Papantla, 
in  the  State  of  Veracruz,  Mexico,  are  several  wells.  We  have 
already  seen  that  oil  exists  in  great  quantities  in  Western  On- 
tario ;  and  gas  has  been  pijx'd  in  great  quantities  from  that  terri- 
tory to  Buffalo  and  Detroit.  There  is  a  small  well  near  Gaspe, 
Quebec,  but  as  late  as  1897  it  had  not  produced  oil  in  paying 
quantities.  The  gi'eatest  oil  field  in  the  world,  perhaps  with  the 
exception  of  the  Baku  district,  was  that  of  Western  Pennsyl- 
vania. The  fields  of  West  Virginia,  Kentucky,  Ohio  and  In- 
diana have  proven  sources  of  great  wealth;  while  Western  New 
York,  Eastern  Tennessee,  Louisiana,  Texas  and  California  have 
proven  fine  deposits  of  oil  we.alth.  Variable  quantities  have 
been  found  in  Michigan,  Illinois,  Missouri,  Kansas,  Indiana 
Territory,  Oklahoma,  Alabama,  Nebraska,  Wyoming,  South 
Dakota,  Colorado,  Xew  ^lexico,  Washington,  Alaska,  and  the 
Northwest  Territory  of  Canada. 

^8.     Natural  gas  known  to  ancients. 

In  boring  wells  for  salt  the  Chinese  in  the  district  Tsien  Luon 
Tsing  discovered  natural  gas  in  very  early  times.  Some  of  the 
wells  are  two  thousand  feet  deep.  The  gas  in  recent  times  has 
been  used,  not  only  for  the  purpose  of  evaporating  salt  water,  but 
for  domestic  pur|X)ses.  It  was  conveyed  to  the  place  of  con- 
sumption by  bamboo  pipes.  When  a  well  became  ignited,  and 
could  not  be  otherwise  extinguished,  they  accumulated  a  body  of 
water  of  considerable  size  aaid  suddenly  precipitated  it  upon  the 

10  In  1880  near  Yorktown. 


16  OIL    AND    GAS. 

burning  well.  As  early  as  A.  D.  615,  gas  wells  were  known  in 
Japan.  At  least  six  hnndred  years  before  the  birth  of  Christ 
the  Magi  of  Asia  were  worshippers  of  the  eternal  fires  that 
blazed  from  fissnres  in  the  mountains  on  the  coast  of  the  Caspian 
Sea.  The  region  of  these  fires  was  on  the  Apsheron  peninsula, 
situated  between  the  Caspian  and  Euxine  Seas,  where  great  de- 
posits of  petroleum  have  been  found  in  recent  years.  The  ad- 
herents of  the  Parsees,  a  sect  founded  by  Zoroaster,  when  they 
subjugated  the  tribes  around  the  Caspian,  adopted  the  fire-wor- 
ship of  -the  conquered.  In  A,.  D.  621  Heraclius  proscribed  their 
rites  and  destroyed  their  temple,  ruins  of  which  still  exist;  and 
twelve  years  later  the  country  was  conquered  by  the  Mohamme- 
dans. Marco  Polo  describes  this  region  in  his  travels,  about 
1272.  At  an  early  age  burning  gas  was  known  in  the  vicinity 
of  Genoa,  Italy ;  and  that  city  Avas  formerly  lighted  with  gas 
brought  from  the  wells  of  Amiano  or  Miamo,  in  Parma.  The 
famous  "  Fontaine  Ardente,"  near  Grenoble,  France,  was  burn- 
ing in  the  time  of  Julius  Csesar,  as  it  had  for  ages  before.  At 
Wigan,  Lancashire,  England,  is  a  gas  or  "burning  well." 

§9.     Early  natural  gas  in  America. 

The  early  discoverers  of  petroleum  in  this  country  mus» 
have  noticed  escaping  gas  in  connection  with  the  petroleum  ;  an-f 
a  few  of  them  make  mention  of  that  fact.  In  1815,  at  Charles 
ton.  West  Virginia,  gas  was  obtained  from  a  salt  well ;  and  r^ 
early  as  1811  It  was  used  In  the  evajwration  of  brine  in  the  man 
ufacture  of  salt.  In  1821,  at  Fredonia,  Chautauqua  County 
Xew  York,  a  Avoman  going  to  a  spring  after  night  for  water  sck 
down  her  lantern,  and  the  spring  immediately  took  fire  from  it 
Investigation  showed  that  gas  in  considerable  quantities  was  eS' 
caping  at  that  place.  The  same  year  a  well  was  sunk  in  that 
town,  on  the  bank  of  Canadaway  Creek,  near  the  Main  Bridge, 
Fredonia,  and  sufficient  gas  obtained  for  thirty  burners.  On 
the  occasion  of  General  Lafayette's  visit  to  that  town  in  1824 
the  Taylor  House,  an  inn  or  hotel,  was  illuminated  by  means  of 
the  gas  obtained  fi^om  this  well.  The  well  was  only  twenty-seven 
feet  deep;  and  in  a  few  years  it  burned  out.     In  1850  it  was 


HISTORICAL    SKETCH.  17 

deepened  to  seventy  feet.  In  1858  a  second  well  was  bored, 
whicli  furnished  gas  for  two  hundred  burners.  In  1871,  a  third 
was  drilled  to  a  depth  of  twelve  hundred  feet.  As  early  as  1863 
natural  gas  was  used  for  manuacturing  purposes  at  East  Liver- 
pool, Columbiana  County,  Ohio,  and  was  used  at  an  early  date 
for  lighting  the  streets,  the  use  for  that  purpose  probably  being 
the  first  instance  of  the  kind.  In  1806  a  gas  well  was  bored 
near  Kenyon  College,  Knox  County,  Ohio,  six  hundred  feet 
deep.  For  several  years  the  gas  was  allowed  to  escape,  blazing- 
fifteen  feet  high  and  three  feet  in  diameter,  before  use  was  made 
of  it.  In  1854  the  first  gas  well  was  bored  (1,200  feet  deep)  in 
Erie,  Pennsylvania ;  and  at  quite  an  early  date  gas  was  found 
in.  a  well  five  hundred  feet  deep  at  West  Bloomfield,  l^ew  York, 
and  which  was  piped  to  Rochester  for  illuminating  purposes. 
In  1873  natural  gas  was  used  to  light  the  town  of  Fairview, 
Pennsylvania ;  and  the  same  year  it  was  found  flowing  from 
the  ground  in  the  salt  region  above  Marietta.  In  1873  gas  in 
great  abundance  was  discovered  on  the  Big  Kanawha,  above 
Charleston,  and  was  used  by  the  workingnnen  to  boil  water 
and  cook  their  dinners ;  and  in  the  same  year  a  well  located 
in  Armstrong  County,  Pennsylvania,  furnished  the  first  gas 
for  a  rolling  mill.  One  year  later  a  gas  well  of  tremendous 
force  was  drilled  at  Murrysville,  Pennsylvania,  twenty  miles 
from  Pittsburgh  ;  and  for  three  years  the  gas  was  allowed  to 
escape,  no  efi^ort  being  made  to  check  its  flow.  In  1876  the 
town  of  Titusville,  Pennsylvania,  was  supplied  for  the  first  time 
with  gas  flowing  at  the  rate  of  four  million  cubic  feet  a  day, 
from  a  well  seven  hundred  and  eighty-six  feet  deep ;  and  the 
same  year  gas  was  brought  from  Butler  County,  nineteen  miles, 
to  Pittsburgh,  for  use  in  a  rolling  mill.  x\bout  this  time  the 
value  of  natural  gas  began  to  be  appreciated ;  but  so  universal 
was  the  l>elief  that  it  was  inexhaustible  that  little  effort  Avas 
made  to  husband  it  until  at  the  end  of  the  next  fifteen  or  twenty 
years,  Avhen  its  decline  became  so  pronounced  that  the  warning 
could  no  longer  be  disregarded  if  the  full  benefit  of  its  use  was 
to  be  preserved.  It  is  safe  to  say  that  wherever  petroleum  is 
found,  natural  gas  will  be  found  in  at  least  small  quantities. 
In  this  countrv  it  has  been  found  in  abundance  in  Western 


18  OIL    AND    GAS. 

Ontario,  Western  New  York,  Western  Pennsylvania,  West  Vir- 
ginia, Eastern  Kentucky,  Ohio,  Indiana,  Texas,  Southeastern 
Kansas  and  Southern  Oregon.  Probably  the  famous  Baku 
district  has  shown  a  greater  display  of  natural  gas  energy  and 
supply  than  any  other  quarter  of  the  globe.  Quite  recently  it 
has  been  discovered  in  Sussex,  England,  near  London. 

§10.     Sources  and  composition  of  petroleum  and  gas. 

The  origin  of  petroleum  and  natural  gas  is  still  a  controverted 
question  and  one  of  speculation  —  an  unsolved  problem.  At 
least  four  tlieories  have  been  advanced,  and  have  their  several 
advocates.  (1)  That  they  are  the  result  of  the  distillations 
from  the  greatly  abundant  accumulations  of  palaeozoic  sea- 
weeds, the  marks  of  which  are  still  traceable  in  very  many 
numerous  instances  in  rocks.  (2)  That  they  are  the  result  of 
the  destruction  of  the  innumerable  multitude  of  coralloid  sea 
animals,  the  skeletons  of  which  make  up  a  large  part  of  lime- 
stone formations.  (3)  That  they  are  the  resultant  of  distilla- 
tion of  bituminous  coal.  (4)  That  they  are,  at  least  petroleum, 
referable  in  the  language  of  Professor  Orton,  State  Geologist 
of  Ohio,  "  to  peculiar  decompositions  chiefly  of  water  and  car- 
bonic acid  whicli  are  supposed  to  be  carried  on  at  considerable 
depths  in  the  earth  where  these  substances  are  brought  into 
contact  with  metallic  iron  or  with  metallic  bases  of  the  alkalies 
at  high  temperature."  ""  The  last  two  may  be  regarded  as 
abandoned.  In  discussing  the  origin  of  petroleum  and  the  sev- 
eral theories,  Professor  Orton  advances  the  following  argument : 
"  They  are  most  commonly  referred  to  the  agency  of  distilla- 
tion. Destructive  distillation  consists  in  the  decomposition  of 
animal  or  vegetable  substances  at  high  temperatures  in  the  ab- 
sence of  air.  Gaseous  and  senii-li(]iii(l  ])ro(lncts  are  (n-olved, 
and  a  coke  or  carbon  residue  remains  behind.  The  '  high  tem- 
peratures '  in  the  definition  given  above,  must  be  understood  to 
cover  a  considerable  range,  the  lower  limit  of  which  may  not 
exceed  400  or  500  degrees  F.  Petroleum  and  gas  on  the  large 
scale  are  not  the  products  of  destructive  distillation.     If  shales^ 

20  Report   on   Oil    and   Gas,    1887,  p.  9 


HISTORICAL    SKETCH.  19 

sandstones  or  limestones  holding  large  quantities  of  organic 
matter,  as  they  often  do,  and  buried  at  a  considerable,  depth, 
should  be  subjected  to  volcanic  heat  in  any  way,  there  is  no 
reason  to  doubt  that  petroleum  and  gas  would  result  from  this 
action.  Without  question,  there  are  such  cases  in  volcanic  dis- 
tricts, but  the  regions  of  great  |>etroleum  production  are  re- 
markably free  from  all  igneous  intrusions,  and  from  all  signs 
of  excessive  or  abnormal  temperatures.  All  claims  for  an 
igneous  origin  of  these  substances  are  emphatically  negatived 
by  the  condition  of  the  rocks  that  contain  tliem.  There  is  a 
statement  of  the  distillation  theory  that  had  attained  quite  wide 
acceptance,  which  needs  to  be  mentioned  here.  It  is  to  the 
effect  that  these  substances,  oil  and  gas,  have  resulted  from  what 
is  called  "  spontaneous  distillation  at  low  temperatures,"  and 
by  low  temj^eratures  ordinary  tem]T€ratures  are  meant.  It  does 
not,  however,  appear  on  what  facts  in  nature  or  upon  what  arti- 
ficial processes  this  claim  is  based.  Destructive  distillation  is 
the  only  process  known  to  science  under  the  name  of  distillation 
which  can  account  for  the  origin  of  oil  or  gas,  and  this  does  not 
go  on  at  ordinary  or  low  temperatures.  A  process  that  goes  on 
at  ordinary  temperatures  is  certainly  not  destructive  distilla- 
tion. It  may  be  chemical  decomposition,  but  this  process  has 
a  name  and  place  of  its  o\vn,  and  does  not  need  to  be  masked 
under  a  new  and  misleading  designation,  such  as  spontaneous 
distillation.  ]^o  help  can  come  to  us,  therefore,  from  the  ado}> 
tion  of  the  spontaneous  distillation  theory.  It  seems  more 
probable  that  these  substances  result  from  the  primary  chemical 
decomposition  of  organic  substances  buried  ^nth  the  forming 
Tocks,  and  that  they  are  retained  as  petroleum  in  the  rocks 
from  the  date  of  their  formation.  It  is  true  that  our  knowl- 
edge of  tiiese  processes  is  inadequate,  but  there  are  many  facts 
on  record  that  go  to  show  that  petroleum  formation  is  not  a 
lost  art  of  nature,  but  that  the  work  still  goes  on  under  favor- 
able conditions.  It  is  very  likely  true  that,  as  in  coal  fomia- 
tion,  the  conditions  most  favorable  for  large  production  no 
longer  occur,  hut  enough  remains  to  show  the  steps  by  which 
the  work  is  done.  The  '^  spontaneous  distillntion  "  theory  has 
-probably  some  apparent  support  in  the  fact  that  must  be  men- 


20  OIL  a:nd  gas. 

tioned  here,  viz :  that  where  petroleum  is  stored  in  a  rock,  gas 
may  be  constantly  escaping  from  it,  constituting  in  part,  the 
surface  indications  that  we  hear  so  much  of  in  oil  fields.  The 
Ohio  shale,  for  example,  is  a  formation  that  yields  along  its  out- 
crops oil  and  gas  almost  everywhere,  but  no  recent  origin  is 
needed  for  either.  The  oil  may  be  part  of  a  primitive  store, 
slowly  escaping  to  the  day,-  and  the  gas  may  be  constantly  de- 
rived from  the  partial  breaking  up  of  the  oil  that  is  held  in  the 
shales.  The  term  ''  spontaneous  distillation  "  might,  with  a 
little  latitude,  be  applied  to  this  last  named  stage,  but  it  has 
nothing  to  do  with  the  origin  of  either  substance.  While  our 
knowledge  of  the  formation  of  petroleum  is  still  incomplete  and 
inadequate,  the  following  statements  in  regard  to  it  are  offered 
as  embodying  the  most  probable  view : 

1.  Petroleum  is  derived  from  vegetable  and  animal  sub- 
stances that  were  deposited  in  or  associated  with  the  forming 
rocks. 

2.  Petroleum  is  not  in  any  sense  a  product  of  destructive  disr 
tillation,  but  is  the  result  of  a  peculiar  chemical  decomposition 
by  which  the  organic  matter  passes  at  once  into  this  or  allied 
products.  It  is  the  result  of  the  primary  decomposition  of 
organic  matter. 

3.  The  organic  matter  still  contained  in  the  rocks  can  be 
converted  into  gas  and  oil  by  destructive  distillation,  but  so  far 
as  we  know,  in  no  other  way.  It  is  not  capable  of  furnishing 
any  new  supply  of  petroleum  under  normal  conditions. 

4.  Petroleum  is,  in  the  main,  contemporaneous  with  the 
rocks  that  contain  it.  It  was  formed  at  or  about  the  time  that 
these  strata  were  deposited. 

William  T.  Brannt,  in  his  work  on  Petroleum,  written  in 
1894,  Avhich  is  based  upon  the  German  w^ork  of  Professor  Hans 
Hoefer  and  Dr.  Alexander  Veith,  gives  the  following  conclu- 
sions "^  as  the  result  of  his  researches : 

1.  "  Petroleum  is  of  animal  origin ;  saurians,  fishes,  cuttle- 
fishes, coralloid  animals,  etc.,  especially  have  authentically 
contril)uted  to  its  fonnation,  tliough  soft  animals  without  solid 
frame,  of  which  no  authentic,  determinable  remains  are  left 

21  Brannt  on  Petroleum,  163. 


PIISTORICAL    SKETCH.  21 

behind,  may  also  have  co-operated.  While  coal  has  been 
fomied  by  the  transformation  of  vegetable  substances,  petro- 
leum and  the  allied  bitumens  originated  from  animal  sub- 
stances. 

2.  "  It  is  still  an  unsolved  problem  whether  i^etroleum  could 
be  formed  from  animal  remains  only  under  s^^ecial  conditions ; 
neither  is  the  nature  of  tliese  conditions  known. 

3.  "  Petroleum  has  been  formed  in  all  ages  of  the  earth's 
history  of  which  animal  remains  exist.  The  Archaean  strata 
are  free  from  petroleum. 

4.  "  Petroleum  could  accumulate  and  be  preserved  in  the 
original  deposit  only,  if  during  its  formation  it  was  shut  oft" 
from  escape. 

5.  "  The  formation  of  petroleum  has  been  effected  without 
the  co-operation  of  an  uncommonly  high  temperature,  and, 

6.  "  It  has  taken  place  under  high  pressure,  the  influence  of 
which  upon  the  chemical  process  is  not  kno^vn. 

7.  "  The  deposits  of  petroleum  are  partially  original  (pri- 
mary) and  partially  secondary ;  the  latter  may  be  or  were  cour 
nected  with  the  former. 

^'  Concerning  the  formation  of  natural  gas  the  same  materials 
and  similar  processes  as  for  the  fonnation  of  petroleum  may 
be  presupposed.  The  accumulation  of  both  also  took  place  in 
the  same  spaces,  frequently  in  such  a  manner  that  the  gas  oc- 
cupied the  higher,  and  the  oil  the  lower  sections  of  the  same 
rock  stratum.  Xo  process  being  knoA\m  l>y  which  petroleum 
can  be  formed  from  natural  gas,  while  the  separation  of  the 
latter  from  the  former  —  even  at  the  ordinary  —  is  a  well 
known  fact,  it  is  very  probable  that  petroleum  is  the  primary 
and  gas  the  secondary  product." 

§11.     Composition  of  petroleum. 

Naturally  petroleum  taken  from  different  quarters  of  the 
Avorld  will  vary  in  composition,  but,  in  general,  it  may  be  said, 
it  is  a  mixture  of  several  hydrocarbons,  and  to  contain  also 
bituminous  materials,  sulphur,  carbonaceous  matter,  sand  and 
clay.^"     Tne  following  table  of  the  result  of  refining  crude  pe- 

229  Pop.  Sci.  Mon.  140;  Crew  on  Petrolevim,  165. 


22 


OIL    AND    GAS. 


troleuni  was  made  ns  early  as  1866 ;  but  it  should  be  remem- 
bered that  oil  even  from  the  same  region  will  not  always  produce 
identical  results.     We  give  the  table : 

Gasoline  3  per  cent. 

Naphtha     10 

Benzine    3         " 

Illuminating  Oil    75         " 

Residuum    4         " 

Coke  and  Loss ' 5         " 


100 


A  distinguished  Russian  chemist,  Ludwig  Nobel,  has  given 
the  following  as  the  result  of  refining  crude  jietroletim  taken 
from  the  Baku  district : 

Benzine    ( light   oil ) 1  per  cent. 

Gasoline     3         " 

Kerosene   (burning  oil) 27         " 

Saliaroui     12 

Lubricants  <   Veregenni    10         " 

Lubricating     17         " 

Cylinder     5 

Vaseline     1         " 

Liquid    fuel    14         " 

Lost  in  refining- 10         " 


100 


The  following  table  is  taken  from  S.  F.  Peckham's  Report 
on  Petroleum  (page  165)  of  the  average  percentages  of  commer- 
cial products  obtained  from  crude  petroleum  from  New  York, 
Pennsylvania,  Ohio  and  West  Virginia : 

Gasoline    1.5  per  cent. 

C  —  naphtha    10.0         " 

B  —  naphtha    2.5 

A  —  naphtha    2.5         " 

Illuminating  Oil   54.0         " 

Lubricating  Oil    17.5         " 

Paraffin     2.0 

Coke  and  Loss 10.0 


100.0 


HISTORICAL    SKETCH.  23 

gl2.     Composition  of  natural  gas. 

Analyses  of  natural  gas  will  necessarily  differ,  varying  with 
the  locality  from  which  it  is  drawn.  In  the  following  table, 
prepared  prior  to  1888,  one  per  cent,  is  unaccounted  for,  it  will 
be  noticed : 

Marsh   Gas    67           per  cent. 

Hydrogen     22  " 

Ethylichydride   5  " 

Nitrogen    3  " 

Carbonic.  Acid    0  6/10  " 

Carbonic  Oxide 0  6/10        " 

Oxygen  0  8/10  " 


99 


An  analysis  of  the  natural  gas  of  Fredonia  showed  the  follow- 


ing results : 


Nitrogen   9.54  per  cent. 

Carbondioxide   0.41         " 

Hydrocarbons  of  the  paraffin  series 90.05         " 


100.00 


Another  analysis  of  Murrysville  gas  produced  the  following 
results : 

Nitrogen     2.02  per  cent. 

Carbondioxide   028         " 

Oxygen    trace 

Paraffins 97.70         " 


100.00         " 

Several  analyses  by  Bunsen  and  Schmidt  of  the  Caucasus  nat- 
ural gas  give  the  following  results : 

Methane     92.49 

Olefines  4.11 

Carbonmonoxide    , 0.93 

Hydrogen    0.94 

Nitrogen     2.13 


93.09 

92.24 

97.57 

95.56 

3.26 

4.26 

2.18 

3.50 

2.49 

4.4 

0.98 

0.49 

24  on.    AND    GAS. 

§13.     Early  attempts  at  distilling  or  refining  petroleum. 

As  early  as  1694  patents  were  granted  in  England  for  mak- 
ing "  pitch,  tar  and  oyle  ont  of  a  kind  of  stone."  In  1781  the 
Earl  of  Dundonald  obtained  oils  from  coal  by  the"  same  process. 
As  early  as  1840  "  coal  oil,"  properly  called,  was  distilled  in 
France  from  bituminous  shale.  During  the  next  ten  years 
hundreds  of  experiments  were  made  to  successfully  distill  oil 
from  coal  and  bog  peat.  E.  W.  Binney,  the  geologist,  of  Man- 
chester, England,  about  1847  called  attention  to  the  petroleum 
found  at  Riddings,  near  Alfreton  in  Derbyshire.  The  same 
year  a  patent  had  been  granted  to  one  Mansfield  for  "  the  im- 
provement in  the  manufacture  and  purification  of  spiritous 
substances  and  oils  applicable  to  the  purposes  of  artificial  light." 
James  Young  the  same  year  began  the  distillation  of  a  substance 
which  he  called  "  petroleum  peat " ;  and  three  years  later  he 
and  Binney  having  discovered  a  highly  bituminous  coal  at 
Boghead,  Scotland,  established  works  for  the  purpose  of  dis- 
tilling oil  from  it,  and  conducted  them  on  an  expensive  scak 
for  fifteen  years.  Several  years  after  Binney  had  called  attei  " 
tion  to  the  petroleum  at  Biddings,  he  and  James  Young  con  - 
menced  the  manufacture  of  illuminating  oil  from  it,  but  tl'») 
supply  soon  giving  out,  they  began  distilling  oil  from  boghea  1 
peat,  as  above  stated.  Refineries  tO'  distill  oil  from  coal  wer! 
soon  established  in  America  under  the  English  patents,  whicli 
were  taken  out  in  this  eount.r\^  in  1856,  but  afterwards  over- 
thrown by  the  courts  as  illegal.  In  1851  petroleum  on  Oil 
Creek,  Pennsylvania,  was  selling  for  seventy-five  cents  a  gallon. 
It  was  tested  by  Messrs.  Williams,  Luther  Atwood  and  Joshua 
Merrill  at  the  United  States  Chemical  Manufacturing  Com- 
pany's works  at  Waltham,  near  Boston,  and  very  satisfactory 
results  obtained ;  but  the  supply  being  very  limited,  little  effort 
was  made  to  manufacture  and  put  it  on  the  market.  Small 
quantities  of  it,  however,  were  put  upon  the  market  in  1852 
and  called  "  Coup-Oil,"  after  the  coup  d'etat  of  Louis  Napo- 
leon. It  was  used  as  a  luliricating  oil.  As  early  as  1855 
petroleum  was  refined  and  offered  for  sale  at  Pittsburgh ;  but 
as  the  quantity  was  small,  a  market  in  that  city  was  found  f(v.- 


IIISTOKICAL    SKETCH.  25 

the  entire  amwmt  of  the  output.  The  manufacture  created 
a  demand  for  the  crude  product.  In  1856  Joshua  Merrill  first 
made  an  illuminating  oil  from  Trinidad  bitumen.  In  1853 
George  H.  Bissell,  having  seen  a  bottle  of  crude  petroleum  in 
die  office  of  Professor  Crosby  of  Dartmouth  College,  that  had 
been  sent  to  him  as  a  curiosity  by  Dr.  Brewer  of  Titusville, 
Pennsylvania,  taken  from  the  banks  of  Oil  Creek,  procured 
another  bottle  of  it  directly  from  that  region,  and  submitted 
it  in  the  spring  of  1855  to  Professor  Benjamin  Silliman,  Jr., 
the  eminent  chemist  of  Yale  College,  who  made  a  report  upon 
it  April  16,  1855,  that  has  become  a  classic  in  the  history  of 
]jetroleum.'^  From  that  moment  the  success  of  distilling  illu- 
(iiinating  oil  from  crude  petroleum  was  established,  and  re- 
fineries began  to  spring  up  as  soon  as  the  supply  warranted  their 
•onstruction  and  the  process  of  refining  became  known.  One  of 
the  earliest  was  situated  on  Hunter's  Point,  Long  Island,  and 
probably  the  most  celebrated  at  Bayonne,  Xew  Jersey."* 

§14.     Early  use  of  petroleum  as  a  medicine. 

The  first  use  made  of  petroleum  was  as  a  medicine.  The  In- 
dians of  Western  Xew  York  mixed  it  with  clay  and  smeared  or 
])ainted  their  faces  with  the  mixture,  producing  a  hideous  effect. 
It  was  gathered  by  the  whites  and  sold  as  a  medicine,  as  al- 
>e.ady  stated.  It  was  sold  under  the  name  of  Seneca  Oil,  Amer- 
ican Oil,  afterward  as  Harlem  Oil.  About  1849,  Mr.  Samuel 
M.  Kier  of  Pittsburgh  conceived  the  idea  of  putting  it  in  bottles 
and  selling  it  as  a  specific  for  all  the  ills  to  which  flesh  is  heir. 
He  procured  a  few  barrels  from  his  father's  salt  wells  in  Alle- 
gheny County,  and  placed  upon  the  bottle  the  following  label  or 

advertisement : 

"  Kier's 
Petroleum    or   Rock   Oil,    celebrated    for    wonderful    cura- 
tive powers.     A  natural  remedy.     Procured  from  a  well  in 
Allegheny  Co.,  Pa.   four  hundred   feet  below   the   Earth's 

23  See  Henry's  History  of  Petro-  Kerosene  Works,  located  at  Boston. 
leum  for  this  report.  The   term   "Kerosene  "  was   a  trade 

24  The  name  "Kerosene"  took  its  mark.     Crew  on  Petroleum,  136. 
name    from   the   celebrated   Downer 


26  OIL    AND    GAS. 

surface.     Put  up  and  sold  by  Samuel  M.  Kier,  3G3  Liberty 
Street,  Pittsburg,  Penn. 

Price  50   cents." 

He  sold  three  barrels  a  day  ;  but  in  three  years  the  demand  for 
it  having  declined,  he  turned  his  attention  to  distilling-  the  crude 
oil  and  in  a  measure  was  successful.  "  Barbados  Tar  "  was 
another  production  of  petroleum  used  as  a  medicine.  At  the 
present  day  valuable  medicinal  products  have  been  made  from 
petroleum,  such  as  filtered  paraffin  residues  sold  under  the 
names  of  cosmoline,  vaseline,  petroline,  and  the  like. 

§15.     Transportation. 

In  Asia  jjetroleum  is  transported  in  the  most  primitive  man- 
ner when  not.  by  water.  In  the  Baku  district  it  was  transported 
in  casks  placed  above  and  slung  under  the  axle  of  a  two-wheeled 
cart,  the  wheels  often  being  seven  feet  in  diameter.  When  oil 
was  first  discovered  on  Oil  Creek,  Pennsylvania,  the  only  means 
of  carrying  it  out  of  that  region  was  by  the  use  of  wagons  to 
haul  it  to  navigable  streams  of  w^ater.  As  the  quantity  to  be 
transported  soon  became  very  great,  hundreds  of  wagons  were 
in  use,  resulting  in  bringing  about  a  condition  of  the  country 
dirt  roads  scarcely  without  parallel.  The  demand  for  trans- 
portation was  greater  than  the  supply  resulting  in  very  high 
prices,  as  high  as  three  dollars  a  barrel  being  charged  for  haul- 
ing a  barrel  four  miles.  Many  a  wagoner  laid  up  a  comfort- 
able sum  for  the  future.  The  oil  was  at  first  placed  in  barj- 
rels  that  cost  $3.50  apiece,  a  barrel  tliat  today  in  that  region 
would  not  cost  over  one  dollar.  These  barrels  were  made  of 
heavy  oak  staves,  hooped  with  iron,  and  coated  on  the  inside 
with  glue ;  but  as  the  crude  oil  had  in  it  some  water,  the  glue 
coating  did  not  prove  a  complete  protection,  and  the  loss  through 
leakage  was  very  considerable.  Oil  Creek  and  Allegheny  River 
were  the  only  chahnels  through  which  petroleum  could  be  car- 
ried to  a  market.  On  reaching  the  creek  the  barrels  were 
placed  on  rafts  and  floated  down  to  the  Allegheny,  if  the  supply 
of  water  would  permit  it.  The  expedient  of  damming  the 
stream  at  a  number  of  places  and  releasing  the  watter  suddenly 


IlISTOKICAI.    SKETCH.  '  27 

was  adopted.  Often  tlie  accumulations  of  these  rafts  or  boats 
were  many,  and  when  the  jwnd-freshets  came  and  the  boats  were 
turned  loose  in  the  stream,  there  being  no  means  of  controlling 
them,  the  loss  Avas  at  times  very  great,  arising  from  confusion 
and  frequent  collisions  and  wreckages.  At  one  time  the  loss 
was  estimated  at  from  20,000  to  30,000  barrels.  The  empty 
boats  were  towed  up  the  stream  again  by  horses,  driven  along 
the  banks  of  the  creek,  but  more  frequently  in  its  bed  or  chan- 
nel. At  Oil  City  the  barrels  were  transferred  to  boats  and 
steamers.  At  one  time  more  than  one  thousand  boats  and  thirty 
steamers  were  engaged  in  the  oil  traffic  at  this  place,  resulting 
in  frequent  collisions  and  jams,  to  the  great  loss  of  shippers. 
During  a  freshet  in  May,  186-1-,  the  loss  was  over  25,000  barrels. 
Bulk  barges  were  soon  introduced  on  the  Allegheny  and  Ohio 
Rivers,  but  as  they  frequently  careened,  because  of  the  oil  shift- 
ing, the  loss  was  considerable.  To  remedy  this,  the  oil  space 
was  cut  into  apartments  or  rooms,  to  prevent  the  shifting. 
The  railroads  early  saw  their  opportunity,  and  entered  the  oil 
region.  During  the  latter  half  of  the  year  18G5  they  introduced 
the  tank  car.  At  first  they  took  an  ordinary  flat  car,  placed 
upon  it  two  tanks  of  four  thousand  gallons  each,  and  securely 
fastened  it  down.  In  1870  or  1871  tanks  of  boiler  iron  were 
introduced,  which  have  continued  in  use  until  the  present  day, 
cars  being  purposely  constructed  for  them.  Transportation  of 
so  bulky  a  product  as  crude  oil  by  means  of  wagon  and  rafts 
and  the  use  of  barrels  was  evidently  too  expensive ;  and  as 
early  as  the  autumn  of  1860  S.  D.  Kams  of  Parkersburg, 
West  Virginia,  suggested  the  practicability  of  transporting 
it  in  pipes  laid  on  or  in  the  ground.  Tn  1862  J.  L.  Hutch- 
inson ran  a  line  of  pipe  on  the  celebrated  Tarr  farm  over 
a  high  hill  to  the  first  refinery  in  the  oil  region,  depending  upon 
the  principle  of  a  syphon  to  carry  the  oil ;  but  the  line  was  a 
failure.  In  1863  he  laid  a  pipe  line  from  the  famous  Sherman 
well  to  the  terminus  of  the  railroad  on  the  Miller  farm,  a 
distance  of  three  miles,  depending  upon  hydraulic  pressure ; 
and  although  one  thousand  barrels  were  emptied  into  the  line 
at  its  beginning,  only  fifty  reached  their  destination.  Pumps 
were  resorted  to,  but  on  account  of  the  inadequacy  of  the  pipe 


28  •  OIL    AND    GAS. 

joints,  the  loss  of  tlie  oil  was  too  great  to  transport  it  in  this 
manner.  After  a  trial  of  two  years  the  line  was  abandoned. 
In  1865  Samnel  Van  Syckle,  by  joining  the  pipes  with  screw 
and  thimble,  laid  a  line  from  the  Miller  farm  to  Pithole,  a 
distance  of  four  miles.  The  pipe  was  laid  two  feet  in  the 
ground ;  and  the  ascent  from  the  farm  to  Pitliole  was  six  hun- 
dred feet.  By  the  application  of  pumps  oil  was  easily  delivered 
at  Pitliole.  This  was  the  first  successful  pipe  line.  The  team- 
sters realized  that  their  business  was  seriously  threatened ;  and 
they  did  just  what  the  half-civilized  oil  haulers  of  the  Baku 
district  did  when  the  Xobel  Brothers  first  introduced  a  pipe 
line  in  that  district  —  they  tore  up  the  line  and  broke  it  in  pieces 
as  fast  as  he  could  lay  it.  Pie  placed  armed  watchmen  along  the 
entire  line,  just  as  was  afterwards  done  in  the  Baku  district ; 
and  after  many  sanguinary  conflicts  with  the  teamsters,  main- 
tained his  pipe  line.  A  second  line  was  completed  the  next 
Spring,  running  from  Benninghoff  to  the  Shaffer  farm.  As 
early  as  1877  there  were  ten  pipe  lines  in  the  oil  region.  The 
construction  of  the  long  distance  lines  Avas  begun  in  1880,  and 
several  were  extended  until  they  reached  the  sea-board,  one 
even  passed  through  Central  Park  in  New  York  City  at  Sixty- 
fourth  street,  in  order  to  reach  the  refinery  on  Hunter's  Point, 
Long  Island.  There  are  now  many  hundred  miles  of  ]>ipe  lines 
in  use  in  the  United  States.  In  Russia  their  use  is  very  com- 
mon. Oil  is  shipped  to  foreign  countries  by  steamers  especially 
built  for  that  purpose,  having  their  holds  cut  into  many  apartr 
ments  to  prevent  the  oil  shifting  and  sinking  the  vessels.  Some 
of  these  steamers  carrv  over  one  and  a  half  million  gallons. 
This  method  of  transportation  has  been  in  use  many  years  oi> 
the  Caspian  Sea. 

§16.     The  j&rst  oil  lease. 

We  give,  as  a  curiosity,  a  copy  of  the  first  oil  lease.  The 
spring  leased  was  situated  in  the  famous  Oil  Creek  region  of 
Pennsylvania : 

"  A<rro9d  this  fhiiilh  day  of  July,  A.  D.  IS.l.S.  with  J.  D.  Angier  of 
nierr^tiee  Township,  in  the  County  of  Venango,  Fa.,  that  he  shall  repair 


HISTOKICAL    SKETCH.  29 

up  and  keep  in  order  the  old  oil  spring  on  land  in  said  Cherrytree  Town- 
ship, or  dig  and  make  new  springs,  and  the  expenses  to  be  deducted  out 
of  the  proceeds  of  the  oil,  and  the  balance,  if  any,  to  be  equally  divided,  the 
one-half  to  J.  D.  Angier  and  the  other  half  to  Brewer,  Watson  &  Co.,  for 
the  full  term  of  five  years  from  this  date.     If  profitable. 

"  Brewer,    Watsox    &    Co. 

"  J.    D.    Angiek."  25 


§17.     Early  use  of  artificial  illuminating  gas. 

The  earliest  kno\^ni  use  of  artificial  gas  for  illuminating  pur- 
poses was  in  1787  when  Lord  Dundonald  of  England  obtained 
gas  from  coal  tar,  and  occasionally  used  it  for  lighting  up  the 
hall  of  Culross  Abbey.  In  1792  William  Murdoch,  residing 
at  Redruth,  Cornwall,  succeeded  in  demonstrating  that  an  illu- 
minating gas  could  be  obtained  from  coal ;  and  in  1797  publicly 
showed  his  system  as  he  had  matured  it.  One  year  later  he 
was  employed  in  the  famous  Soho  workshop  of  Boulton  and 
Watt,  located  at  Birmingham,  England ;  and  he  fitted  up  an 
apparatus  in  that  establishment  for  the  manufacture  of  gas, 
with  which  it  was  partly  lighted.  Shortly  after  his  apparatus 
was  extended  and  gas  manufactured  for  other  establishments  of 
that  manufacturing  city.  In  1801  M.  Lebon  of  Paris  intro- 
duced into  his  house  gas  distilled  from  wood.  Through  the 
efforts  of  F.  A.  Winsor  of  London,  the  Lyceum  Theatre  of  that 
city  was  lighted  with  gas  in  1803.  The  first  employment  of 
gas  for  street  lighting  was  January  28,  1807,  when  Pall  Mall, 
London,  was  lighted.  In  1810  Parliament  passed  an  Act  au- 
thorizing the  incorporation  of  a  gas-light  company;  and  two 
years  later  the  first  gas-light  company  was  incorporated,  called 
the  "  Chartered  Gas-light  and  Coke  Company."  Westminster 
bridge  was  lighted  with  gas  in  1813,  for  the  first  time;  and  the 
next  year  the  streets  of  Westminster.  In  1816  London  was 
lighted  with  it ;  and  so  rapidly  did  it  advance  that  by  1820 
many  of  the  principal  cities  of  the  kingdom,  as  well  as  Paris 
and  some  other  cities  on  the  Continent,  were  lighted  by  its  use. 
It  was  used  in  many  large  workshops  and  public  buildings.  It 
found  its  way  into  private  houses  very  slowly;  one  of  the  rea- 

25  Henry's  History  of  Petroleum,  60. 


30  OIL    AND    GAS. 

sons  for  its  slow  progress  arose  from  the  annoyance  occasioned 
by  it  escaping  from  ill-fitted  pipes,  and  the  other,  and  perhajjs 
justly  so  in  a  large  measure,  from  apprehension  of  the  danger 
attending  its  use.  By  1829  there  were  200  gas  works  in  Great 
Britain.  In  the  United  States  gas  was  first  used  for  lighting  in 
Xewport,  Rhode  Island,  in  1806,  David  Melville  making  and 
using  it  in  his  house  and  in  the  street  in  front  of  it.  In  1813  he 
took  out  a  patent  on  its  manufacture,  and  lighted  several  large 
factories.  Four  years  later  his  process  was  applied  to  Beaver  Tail 
light-house,  tliat  being  the  first  instance  where  gas  was  used  in  a 
light-house  lantern.  In  1816  an  attempt  was  made  to  manu- 
facture gas  for  lighting  purposes  in  Baltimore,  but  the  attempt 
was  a  failure,  and  success  was  not  attained  until  1821.  The 
next  year  it  was  introduced  into  Boston.  In  1823  the  New 
York  Gasrlight  Company  was  formed,  but  because  of  the  little 
demand  for  gas  it  did  not  begin  active  operations  until  1827, 
Three  years  later,  success  having  been  assured,  the  Manhattan 
Company  was  organized,  which  entered  the  field  as  a  competi- 
tor of  the  New  York  Company.  Until  1849  both  companies 
made  their  gas  from  oil  or  rosin.  Gas  was  not  introduced  into 
Philadelphia  until  1835.  From  1824  to  1828  the  New  York 
Gashlight  Company  manufactured  gas  from  oil  exclusively,  and 
sold  the  product  at  $10  per  1,000  feet.  The  gas  manufactured 
by  this  company  from  rosin  from  1828  to  1848  was  sold  by  it  at 
$7  per  1,000  feet.  Wood  gas  was  used  at  the  Philadelphia  gas 
works  as  late  as  1856. 


CHAPTER   II. 


LEGAL  STATUS  OF  OIL  AND  NATURAL  GAS. 

§18.  Oil  and  natural  gas  a  mineral. 

§19.  Part  of  realty. 

§20.  Ownership  in  earth. 

§21.  Compared  with  animals  ferae  naturae. 

§22.  When  title  vests  in  owner. 

§23.  Ownership  of  oil  differs  from  that  of  water. 

§24.  Owner  of  land  has  only  a  qualified  ownership. 

§25.  Qualified  ownership  in  oil. —  Power  of  legislature. 

§26.  Severance  of  oil  or  gas  from  realty. 

§27.  Recovery  of  severed  product. —  Trover. 

§28.  Wasting  gas. —  Injunction. 

§29.  Increasing  flow  of  gas  by  pumping  well. 

§30.  Pumping  oil  wells. 

§31.  Exploding  nitroglycerin  in  well  to  increase  flow. 

§32.  Maliciously   boring  well   to   injure  another. 

§33.  Measure  of  damages  for  unlawfully  taking  oil  and  gas  from  the  soil. 

§34.  When  lessee  acquires  title  to  oil. 

§35.  Waste. —  Part   of   realty. —  Reservation. 

§36.  Partition. 

§37.  Oil  and  gas  not  synonymous. 

§38.  "Other  valuable  volatile  substances." 

§39.  Natural  gas  not  heat. 

§40.  Gas  and  oil  an  article  of  commerce. 

§41.  Judicial  notice. 

§42.  Judicial  knowledge  of  oil  and  gas  properties. 

§43.  Plugging  wells. 

§44.  Not  subject  to  tariff  law  of  1890.   ' 

§45.  Entry  of  government  oil  lands. 

§46.  Property  in  oil  tanks  or  pipe  lines. —  Larceny. 

§18.     Oil  and  natural  gas  a  mineral. 

Whatever  may  have  been  thought  of  oil  or  natural  gas  at  one 
time/  it  is  now  established  beyond  any  question  that  oil  or  pe- 
troleum and  natural  gas  are  minerals,  and  judicially  must  be  so 

i  Dunham  v.  Kirkpatrick,  101  Pa.  St.  43. 

31 


32 


OIL    AND    GAS, 


treated.'  Whether  or  not  natural  gas  is  a  mineral  was  presented 
in  a  Canadian  case,  and  ably  discussed.  The  question  arose  on 
the  construction  of  a  section  of  the  Municipal  Act.  The  clause 
construed  was  as  follows :  "  The  corporation  of  any  township 
or  county,  wherever  minerals  are  found,  may  sell,  or  lease,  by 
public  auction  or  otherwise,  the  right  to  take  minerals  found 
upon  or  under  any  roads  over  which  the  to^vnship  or  county 
may  have  jurisdiction,  if  considered  expedient  to  do  so."  The 
question  was  whether  this  sentence  covered  natural  gas,  and  it 
Avas  decided  that  it  did.^  It  was  also  held  that  this  statute  au- 
thorized the  leasing  of  a  highway  for  the  purpose  of  drilling  for 
gas." 


§19.     Part  of  realty. 

Oil  and  gas,  until  severed  from  the  realty,  are  as  much  a  part 
of  it  as  coal  or  stone.  So  long  as  they  remain  in  the  ground, 
outside  of  an  artificial  receptacle  at  least,  as  the  casing  of  a 
well  or  a  pipe  line,  they  must  be  treated  as  a  part  of  the  realty 
underneath  the  surface  of  which  they  lie.^     So  much  so  are  they 


2  Murray  v.  Allard,  100  Tenn.  100; 
43  S.  W.  Rep.  355;  39  L.  R.  A.  249; 
66  Am.  St.  Rep.  740;  Kelley  v.  Ohio 
Oil  Co.,  57  Ohio  St.  317;  49  N.  E. 
Rep.  399;  39  L.  R.  A.  765;  63  Am. 
St.  Rep.  721,  affirming  6  Ohio  C.  Ct. 
Dec.  470;  9  Ohio  C.  C.  511;  34 
Wkly.  L.  Bull.  185;  Wilson  v. 
Youst,  43  W.  Va.  826;  28  S.  E.  Rep. 
781 ;  39  L.  R.  A.  292 ;  Funk  v.  Halde- 
man,  53  Pa.  St.  229;  Thompson  v. 
Noble,  3  Pittsb.  201;  17  Pittsb.  L. 
Jr.  45;  Stoughton's  Appeal,  88  Pa. 
St.  198;  Roberts  v.  Jepson,  4  Land 
Dec.  60;  Piru  Oil  Co.  16  Land  Dec. 
117;  Ontario  Natural  Gas  Co.  v. 
Gosfield,  18  Ont.  App.  626;  38  Am. 
and  Eng.  Corp.  253;  Brown  v.  Spill- 
man,  155  U.  S.  665;  15  Sup.  Ct.  Rep. 
245;  People's  Gas  Co.  y.  Tyner,  131 
Ind.  277;  31  N.  E.  Rep.  59;  16  L.  R. 
A.  443;  Hail  v.  Reed,  15  B.  Mon. 
479;     11     Morr.     Min.     Rep.     103; 


Hughes  V.  United  Lines,  119  N.  Y. 
423;  23  N.  E.  Rep.  1042;  Westmore- 
land, etc.,  Co.  V.  DeWitt,  130  Pa.  St. 
235;  18  Atl.  Rep.  724;  5  L.  R.  A. 
731;  29  Amer.  L.  Reg.  93;  Given  v. 
State  (Ind.),  66  N.  E.  Rep.  750. 

3  Ontario  Natural  Gas  Co.  v. 
Smart,  19  Ont.  Rep.  595. 

*  Ontario  Natural  Gas  Co.  v.  Gas- 
field,  18  Ont.  App.  Kep.  626;  38  Am. 
and  Eng.  Corp.  Cas.  253 ;  see  Gesner 
V.  Cairns,  2  Allen  (N.  B.),  595;  and 
Gesner  v.  Gas  Co.,  James  Rep.  (N. 
B.),  72;  In  re  Buffalo  Natural  Gas 
Co.,  73  Fed.  Rep.  191;  Maxwell  v. 
Brierly,  10  Copp.  L.  D.  50;  Roberts 
V.  Jepson,  4  L.  D.  60. 

5  Hail  V.  Reed,  15  B.  Mon.  479;  11 
Morr.  Min.  Rep.  103;  Columbian  Oil 
Co.  V.  Blake,  13  Ind.  App.  680;  42 
N.  E.  Rep.  234;  People's  Gas  Co.  v. 
Tyner,  131  Ind.  277;  31  N.  E.  Rep. 
59;  16  L.  R.  A.  443;  Bro\VTi  v.  Spill- 


LEGAL    STATUS. 


33 


a  part  of  the  realty,  as  we  shall  re}D€atedly  see  hereafter,  that 
a  conveyance  of  them  in  their  natural  state  in  the  earth  requires 
all  the  formalities  of  a  conveyance  of  any  other  interest  in  the 
same  real  estate."  A  reservation  of  "■  all  mines,  minerals  and 
metals  in  and  imder  "  a  tract  of  land  is  a  reservation  of  tJie 
oil  and  gas.^ 

§20.     Ownership  in  earth. 

The  owner  of  the  surface  is  the  owner  of  the  gas  and  oil 
beneath  it ;  but  if  they  escape  into  the  land  of  another  he  ceases 
to  be  the  owner  of  them.  They  are  the  subject  of  grant  or  con- 
veyance, just  as  much  so  as  the  grant  or  conveyance  of  coal  or 
stone  buried  in  the  soil  of  the  same  tract  of  land.* 

§21.     Compared  with  animals  ferae  naturae. 

In  seeking  for  analogous  conditions  in  the  law,  courts  have 
compared  natural  gas  and  oil  to  that  of  animals  ferae  naturae. 
The  Supreme  Court  of  Pennsylvania  made  this  comparison  in  a 
case  that  has  become  a  leading  authority  wherever  the  subject 
of  gas  and  oil  is  discussed.     "  Water  and  oil,"  said  the  court, 


man,  155  U.  S.  665;  15  Sup.  Ct. 
Rep.  245 ;  Acheson  v.  Stevenson,  146 
Pa.  St.  299;  23  Atl.  Rep.  331,  396; 
Williamson  v.  Jones,  39  W.  Va.  231 ; 
19  S.  E.  Rep.  436;  25  L.  R.  A.  222; 
Stoughton's  Appeal,  88  Pa.  St.  198; 
Funk  V.  Haldeman,  53  Pa.  St.  229. 

6  Heller  v.  Dailey,  28  Ind.  App. 
555;  63  N.  E.  Rep.  490;  American 
Winaow  Glass  Co.  v.  Williams  (Ind. 
App.),  66  X.  E.  Rep.  912. 

7  Murray  v.  Allard,  100  Tenn.  100; 
43  S.  W.  Rep.  353 ;  39  L.  R.  A.  249 ; 
66  Am.  St.  Rep.  740. 

8  Hail  V.  Reed.  15  B.  Mon.  479; 
11  Morr.  Min.  Rep.  103;  People's 
Gas  Co.  V.  Tyner,  131  Ind.  277;  31 
N.  E.  Rep.  59;  16  L.  R.  A.  443; 
Manufacturer,  etc.,  Co.  v.  Indiana, 
etc.,  Co.,  155  Ind.  4S1 ;  57  K  E.  Rep. 


912;  57  L.  R.  A.  768;  State  v.  Ohio 
Oil  Co..  150  Ind.  21;  49  N.  E.  Rep. 
809;  47  L.  R.  A.  627;  Ohio  Oil  Co. 
V.  Imiianr.,  177  U.  S.  190;  20  Sup. 
Ct.  Rep.  585;  Townsend  v.  State, 
147  Ind.  624;  47  N.  E.  Rep.  19;  37 
L.  R.  A.  294 ;  Hughes  v.  United  Pipe 
Lines,  119  N.  Y.  423;  23  N.  E.  Rep. 
1042;  Keir  v.  Peterson,  41  Pa.  St. 
357 ;  Westmoreland,  etc.,  Co.  v.  De- 
Vritt,  130  Pa.  St.  235;  18  Atl.  Rep. 
724;  5  L.  R.  A.  731;  29  Amer.  L. 
Reg.  93;  Acheson  v.  Stevenson,  146 
Pa.  St.  299;  23  Atl.  Rep.  331,  336 
Hague  V.  Wheeler,  157  Pa.  St.  324 
27  Atl.  Rep.  714;  22  L.  R.  A.  141 
Wood  County,  etc..  Co.  v.  Wert  Vir- 
ginia, etc.,  Co.,  28  W.  Va.  210;  Wil- 
li?mson  v.  Jones.  39  W.  Va.  231 ;  19 
S.  E.  Rep.  436 ;  25  L.  R.  A.  222. 


34  OIL    AND    GAS. 

""  and  still  more  strongly  gas,  may  be  classed  by  themselves,  if 
the  analogy  be  not  too  fanciful,  as  minerals  ferae  naturae.  In 
common  with  animals,  and  nnlike  other  minerals,  they  have 
the  jx)wer  and  tendency  to  escape  Avithont  the  volition  of  the 
OA\aier.  Their  *  fugitive  and  wandering  existence  within  the 
limits  of  a  particular  tract  is  uucertain,'  "  They  belong  to  the 
owner  of  the  land  and  are  part  of  it,  and  are  subject  to  his 
control ;  but  when  they  escape,  and  go  into  other  land,  or  come 
under  another's  control,  the  title  of  the  former  owner  is  gone. 
Possession  of  the  land,  therefore,  is  not  necessarily  possession 
of  the  gas.  If  an  adjoining,  or  even  a  distant,  owner  drills  his 
own  land,  and  taps  your  gas,  so  that  it  comes  into  his  well  and 
under  his  control,  it  is  no  longer  yours  but  his."  ^*^ 

§22.     When  title  vests  in  owner. 

It  has  been  said  repeatedly  by  the  courts  and  A\Titers  that  the 
owner  of  the  soil  owns  the  gas  and  oil  l>eneath  its  surface ;  and 
expressions  to  this  effect  will  be  found  in  this  work.  This  is 
an  acknowledgment  of  the  absolute  ownership  of  the  gas  and  oil 
beneath  the  surface  by  the  owner  of  the  land.^^  But  under  the 
Indiana  decisions,  which  have  met  with  the  approval  of  the  Su- 
preme Court  of  the  United  States,^"  the  owner  of  the  land  has 
only  a  qualified  right  to  the  oil  and  gas  beneath  the  surface  — 
the  right  to  reduce  it  to  possession  and  to  exclude  all  others  exer- 
cising the  right  on  the  premises  —  and  title  in  him  to  it  does 
not  vest  until  he  has  reduced  it  to  nctual  possession,  either  by 
bringing  it  into  a  well  or  into  a  ])iix?  line,  or  into  a  tank  or 
other  receptacle  in  case  of  oil.  Until  that  has  happened  the  gas 
or  oil  by  natural  forces  may  escape  from  his  land,  be  reduced 
to  possession  by  another,  and  become  his  property. ^^ 

9  Quoting  from  Brown  v.  Vander-  L.  R.  A.  294;  Lowther  Oil  Co.  v. 
grifc.  80  Pa.  St.  147.  Miller   (W.  Va.),  44  S.  E.  Rep.  433. 

10  W  estmoreland,  etc.,  Co.  v.  De-  n  See  Jones  v  Forest  Oil  Co.,  194 
Witt,  130  Pa.  St.  235;  18  At!.  Rep.  Pa.  St.  379;  44  Atl.  Rep.  1074;  30 
724;  5  L.  R.  A.  731;  29  Amer.  L.  Pittsb.  L.  J.  (N.  S.)  58;  48  L.  K. 
Reg.  93;  People's  Gas  Co.  v.  Tyner,  A.   748. 

131  Ind.  277;   31  N.  E.  Rep.  59;   16  12  Ohio  Oil  Co.  v.  Indiana,  177  U. 

L.    R.    A.   443;    Townsend   v.   State,        S.   190;   20  Sup.  Ct.  Rep.  585. 

147  Ind.  624;  47  N.  E.  Rep.  19;  37  1 3  State  v.  Ohio  Oil  Co.,   150  Ind. 


LEGAL    STATUS,  tj.> 

^23.     Ownership  of  oil  differs  from  that  of  water. 

The  ownership  of  oil,  however,  is  not  identical  with  the  own- 
ership of  water.  It  is  trne  both  are  regarded  as  minerals,  and 
are  also  regarded  as  liquids;  in  this  respect  they  are  legally  and 
physically  identical. 

''  The  second  ground  of  defense,"  said  the  Court  of  Appeals 
of  Kentucky,  "  relies  upon  the  fact  that  the  oil  was  taken  from 
a  well  bored  down  to  a  running  stream  of  oil,  which  was  vague 
and  fugitive,  and  had  not  been  confined,  nor  ever  reduced  to 
possession,  nor  ever  in  possession  of  plaintiffs.  And  in  sup^ 
port  of  this  ground  we  are  presented  with  a  very  ingenious  ar- 
gument, founded  on  the  principles  laid  down  by  elementary 
authors  Avith  respect  to  water,  which  Blackstone  says  must 
unavoidably  remain  in  common,  susceptible  only  of  a  usufruc- 
tuary projx^rty,  belonging  to  the  first  occu]>ant  during  the  time 
he  holds  possession  of  them,  and  no  longer.  Whence  it  is  ar- 
gued that  this  oil,  being  a  liquid  like  water,  and  flowing,  as 
alleged  in  a  stream  at  the  bottom  of  this  well,  was  common  to 
all,  susceptible  only  of  a  usufructuary  property,  and  that  tho 
particular  jxjrtion  of  it  now  in  contest  belonged  to  the  defend- 
ants, as  the  first  occupants  and  appropriators  of  it.  But  it  is  to' 
be  observed  that  the  portion  of  Blackstone  to  which  reference  is 
made,  is  a  treatise  upon  pro])erty  in  general;  that  is,  upon  the. 
]>rinciples  on  which  the  right  of  property  in  external  things 
depends,  and  which  he  states  especially  with  respect  to  water, 
the  broad  ]U"inci]>les  applicable  to  the  subject  in  its  most  general 
aspect,  without  reference  to  any  distinctions  or  discriminationa 
by  which  they  might  be  modified.  Then,  besides  the  fact  that 
water  is  not  oil,  and  that  while  nature  furnishes  the  former  al- 
most everywhere,  for  the  common  use  of  man,  as  being  a  mii- 
versal  necessity,  she  furnishes  the  latter,  for  the  most  part,  only 
as  the  result  of  arduous  labor  and  intricate  processes,  and  but 
rarely  produces  it  in  its  perfect  state ;  it  is  to  be  remarked  that 
water  itself,  though  found  generally  running  upon  the  surface 

21;  49  N.  E.  Rep.  809;  47  L.  R.  A.  N.  E.  Rep.  912;  50  L.  R.  A.  768; 
627;  Manufacturer,  etc..  Co.  v.  In-  Townsend  v.  State.  147  Ind.  624;  47 
diana.    etc..    Co.,    1.5.5    Ind.    461;    .57       N.  E.  Rep.  21;  37  L.  R.  A.  294. 


36  OIL    AND    GAS. 

of  tlie  earth,  where  it  may  be  obtained  for  use  bv  merely  taking 
it,  and  where,  being  furnished  by  nature  for  the  use  of  all  who 
may  conveniently  nse  it,  it  is  only  to  be  appropriated  by  use 
and  for  use,  yet  it  is  also  frequently  found  under  the  surface, 
and  obtained  or  reached  at  great  expense  and  labor,  by  means 
of  wells  by  which  it  is  intended  to  be  appropriated.  This  dis- 
crimination is  not  made,  nor  was  it  necessary  for  the  pur])oses 
of  tlie  author  that  it  should  be  made  in  the  general  view  which 
he  was  taking  of  property  in  general.  The  very  title  of  the 
chapter,  and  the  nature  of  his  observations,  would  lead  to  the 
conclusion  that  he  was  speaking  of  w^ater  as  it  is  furnished  by 
nature  for  the  ordinary  use  of  man,  and  as  it  is  commonly  found 
running  u])on  the  surface  of  the  earth.  The  very  fact  that, 
after  illustrating  the  principle  of  property  being  founded  on 
occupancy  and  on  labor,  by  reference  to  the  well  made  by  one  of 
the  ancient  patriarchs,  he  takes  no  notice  of  wells  when  he  comes 
to  treat  of  water  as  a  subject  of  property,  shows  that  he  thought 
only  of  water  on  the  surface,  or  that  he  considered  a  well  by 
which  it  might  be  obtained  from  beneath  the  surface  as  a  means 
of  appropriation.  The  other  authorities  referred  to  treat  espe- 
cially of  water  on  the  surface ;  the  first,  considering  the  subject 
under  the  title  of  running  waters,  and  showing  that  he  is  con- 
sidering water  running  over  land,  and  the  other  treating  the 
subject  under  the  title  of  water  courses,  and  both  stating  chiefly 
the  rights  of  riparian  owners.  The  latter,  however,  treats  spe- 
cially, though  briefly,  of  springs,  as  to  which  he  says  the  owner 
of  land  is  entitled  to  all  advantages  arising  from  it,  and  may 
use  a  spring  found  upon  it,  as  he  does  any  other  property, 
without  regard  to  the  convenience  or  advantage  of  others.  And 
that  this  right  is  very  different  from  the  right  of  the  owner  of 
an  estate  through  which  water  flows.  What  becomes,  then,  of 
the  common  right  of  all  to  the  use  of  the  water  in  the  spring,  if 
it  may  be  thus  exclusively  claimed  and  used  and  owned  by  the 
owner  of  the  soil  ?  And  if  the  water  in  a  spring  found  on  his 
land  is  thus  his  exclusive  property,  there  seems  to  be  much  more 
reason  to  say  that  water  at  the  bottom  of  a  well  which  he  has  by 
his  labor  and  expense  constructed  for  the  very  purpose  of  re- 
taining water  in  it  for  his  use,  and  of  facilitating  the  access  to 


LEGAL    STATUS.  37 

it,  is  his  exclusive  prcpei'ty.  And  still  stronger  is  the  reason 
for  considering  him  as  the  exclusive  owner  of  oil,  a  peculiar 
li(inid  not  necessary  nor  indeed  suitable  for  the  common  use  of 
man,  and  for  reaching  and  obtaining  which  for  its  proper  uses 
and  for  profit,  he  has  constructed  a  well  with  suitable  fixtures. 
Tt  is  indeed  said  in  the  answer,  though  it  is  scarcely  to  be  seen 
in  the  evidence,  that  this  well  is  bored  down  to  a  stream  of  oil. 
But  while  there  are  but  slight  traces  even  of  a  seeping  of  oil 
through  the  well,  it  is  neither  alleged  nor  proved  that  the  well 
presents  no  obstruction  to  the  stream  or  flow  of  oil,  or  that  it 
does  not  hold  or  retain  at  least  a  portion  of  it,  for  facility  in 
drawing  it  out.  We  know  that  in  wells  for  drawing  water  it 
is  usual,  and,  where  the  supply  is  small,  necessary  to  sink  the 
well  below  the  point  where  the  water  enters  it,  so  that  it  may 
])e  retained  there  in  sufficient  quantities  for  use,  and  for  drawing 
it  up.  There  is  nothing  to  show  that  this  was  not  the  case  in 
the  present  instance,  and  the  jury  might  have  so  found.  But 
we  are  of  opinion  that  whether  the  water  or  oil  is  running 
through  the  well  in  a  stream  or  not,  that  which  is  actually  in  the 
well  is,  while  it  is  there,  and  subject  to  be  dra^vn  out,  though  it 
be  there  only  in  passing  from  one  side  of  it  to  the  other,  apr 
propriated  by  the  owner  to  his  own  use,  and  belongs  to  him  when 
it  is  drawn  out,  unless  this  is  done  by  his  license  and  for  an- 
other's use.  If,  as  may  be  presumed,  the  well  is  sunk  below  the 
point  at  which  the  water  or  oil  enters,  or  if  the  water  or  oil,  in 
any  quantity,  stands  in  it  until  dra\^Ti  out,  the  evidence  of  api- 
propriation  is  still  stronger,  and  the  right  of  the  o\\mer  more 
easily  established.  And  in  either  case,  the  water  or  oil,  if 
drawn  up  by  a  wrong-doer,  is  the  property  of  the  person  entitled 
to  the  well,  or  its  exclusive  use,  and  may  be  specifically  recov- 
ered. Whether  the  barrels  in  which  the  wrong-doer  has  placed 
it  may  also  be  recovered  with  the  oil,  or  other  barrels  should  be 
furnished  by  the  owner,  we  need  not  at  present  decide."  ^^ 

§24.     Owner  of  land  has  only  a  qualified  ownership. 

The  Supreme  Court  of  Indiana,  while  having  repeatedly  re- 
ferred to  the  fact  that  the  ownership  of  oil  and  gas  is  compared 

"Hail  V.  Reed,  15  B.  Mon.  479;  11  Morr.  Min.  Rep.  103. 


38  OIL    AND    GAS. 

'witli  tlie  ownorship  of  animals  ferae  naturae,  has  pointed  ont 
that  the  owner  of  land  does  not  own  the  wild  animals  that  may 
be  npon  it  until  he  has  reduced  them  to  actual  possession,  al- 
though he  has  the  right  to  prohibit  any  one  else  taking  them  so 
long  as  they  remain  on  his  land.  That  court  quotes  from  a 
Minnesota  case  ^^  with  respect  to  the  ownership  of  wild  animals, 
in  which  it  is  said:  "  We  take  it  to  be  the  correct  doctrine  in 
this  country  that  tlie  ownership  of  wild  animals,  so  far  as  they 
are  capable  of  ownership,  is  in  the  State,  not  as  proprietors,  but 
in  its  sovereign  capacity  as  the  representative,  and  for  the  bene- 
fit, of  all  its  people  in  common.  The  preservation  of  such 
animals  as  are  adapted  to  eonsimiption  as  food,  or  to  any  other 
useful  purpose,  is  a  matter  of  public  interest;  and  it  is  within 
the  police  power  of  the  State,  as  the  representative  of  the  j^eople 
in  their  united  sovereignty,  to  enact  such  laws  as  will  pre- 
serve such  game,  and  secure  its  beneficial  use  in  the  future  to 
the  citizens,  and  to  that  end  it  may  adopt  any  reasonable  regu- 
lations, not  only  as  to  time  and  manner  in  which  such  game  may 
be  taken  and  killed,  but  also  by  imposing  limitations  upon  the 
right  of  property  in  such  game  after  it  has  been  reduced  to 
possession."  After  having  made  this  quotation,  and  also  re- 
ferring to  the  fact  that  it  had  likened  the  ownership  of  natural 
gas  and  oil  to  the  owmership  of  wild  beasts,  the  Indiana  court 
said : 

"  There  is  no  such  thing  in  such  laws,  either  as  to  wild  ani- 
mals or  fish,  to  tlie  effect  that  they  become  the  property  of  the 
owner  of  the  land  on  which  the  animals  are  found,  or  in  the 
waters  of  which  the  fish  are  found.  And  there  is  no  such  thing 
in  such  laws  to  the  effect  that  after  title  has  once  vested  by 
actual  i^eduction  to  possession,  that  the  same  may  wander  off 
and  vest  in  some  one  else.  To  say  that  the  title  to  natural  gas 
vests  in  the  owner  of  the  land  in  or  under  which  it  exists  today, 
and  that  tomorrow,  having  passed  into  or  under  the  land  of  an 
adjoining  owner,  it  thereby  becomes  his  property,  is  no  less  ab- 
surd and  contrary  to  all  the  analogy  of  the  law,  than  to  say  tli'it 
wild  animals  or  fowls  in  '  their  fugitive  and  wandering  exist- 
ence,' in  passing  over  the  land,  become  the  property  of  the  owner 

"State  V.  Rodman,  58  Minn.  393;  59  N.   W.   Rep.   1098. 


LEGAL    STATUS.  39 

of  sueli  land,  or  tliat  fisli  in  tlieir  passage  up  or  down  a  stream* 
of  water  become  the  property  of  each  successive  owner  over 
whose  hind  the  stream  passes.  It  is  as  unreasonable  and  un- 
tenable as  to  say  that  the  air  and  the  sunshine  which  float  over 
the  owner's  land  are  a  part  of  the  land,  and  are  the  property  of 
the  owner  of  the  land.  We  therefore  hold  that  the  title  to 
natural  gas  does  not  vest  in  any  private  owner  until  it  is  reduced 
to  actual  possession,  and  therefore  that  the  Act  from  which  we 
have  quoted  is  not  violative  of  the  Constitution,  as  an  miwar- 
ranted  interference  with  private  property."  ^® 

§25.     Qualified  ownership  in  oil. —  Power  of  legislature. 

The  case  from  which  the  quotation  has  been  made  in  the 
next  preceding  section  was  carried  to  the  Supreme  Court  of 
the  United  States ;  and  in  affirming  it  that  court  used  the  follow- 
ing  language : 

"  If  the  analogy  between  animals  ferae  naturae  and  mineral 
-deposits  of  oil  and  gas,  stated  by  the  Pennsyl\^ania  court  and 
adopted  by  the  Indiana  court,  instead  of  simply  establishing 
a  similarity  of  relation,  proved  the  identity  of  the  two  things, 
there  would  be  an  end  of  tlie  case.  This  follows  because  things 
which  are  ferae  naturae  belong  to  the  '  negative  community  ' ; 
in  other  words,  are  public  things  subject  to  the  absolute  con- 
trol  of  the  State,  which,  although  it  allows  them  to  be  reduced 
to  possession,  may  at  its  will  not  only  regulate  but  wholly  for- 
bid their  future  taking.  But  whilst  there  is  an  analogy  be- 
tween animals  ferae  naturae  and  the  moving  deposits  of  oil  and 
natural  gas,  there  is  not  identity  between  them.  Thus,  the 
owner  of  land  has  the  exclusive  right  on  his  property  to  reduce 
the  g?.me  there  found  to  possession,  just  as  the  owner  of  the 
soil  has  the  exclusive  right  to  reduce  to  possession  the  deposits 
■of  natural  gas  and  oil  found  beneath  the  surface  of  his  land. 
The  owner  of  the  soil  cannot  follow  game  when  it  passes  from 

1"  State  V.  Oliio  Oil  Co..   150  Ind.  Rep.  .'iS.t;  People's  Gas  Co.  v.  Tyner, 

21;  49  N.  E.  Ren.  800;  47  L.  R.  A.  1?,1    Tiid.  277;  .31  N.  E.  Rep.  60;   16 

627;    affirmed    Ohio    Oil    Co.    v.    Tn-  L.   R.   A.  443. 
Jiar.a,    177    U.   S.    inO;    20   Sup.   Ct. 


40  OIL    AND    GAS. 

his  property ;  so,  also,  tlie  owner  may  not  follow  the  natural 
gas  M'hen  it  shifts  from  beneath  his  own  to  the  property  oi 
some  one  else  within  the  gas  field.  It  being  true  as  to  both 
animals  ferae  naturae  and  gas  and  oil,  therefore,  that  whilst  tlie 
right  to  ap])ropriate  and  become  the  owner  exists,  proprietor- 
ship does  not  take  place  until  the  particular  subjects  of  the  right 
become  property  by  being  reduced  to  actnal  possession.  The 
identity,  however,  is  for  many  reasons  Avanting.  In  things, 
feme  naturae  all  are  endowed  with  the  power  of  seeking  to 
reduce  a  portion  of  the  ]mblic  property  to  the  domain  of  pri- 
vate ownership  by  reducing  them  to  possession.  In  the  ease 
of  natural  gas  and  oil  no  snch  right  exists  in  the  public.  It  is 
vested  only  in  the  owners  in  fee  of  the  surface  of  the  earth 
within  the  area  of  the  gas  field.  This  difference  points  at 
once  to  the  distinction  between  the  power  which  the  lawmaker 
may  exercise  as  to  the  two.  In  the  one,  as  the  public  are  the 
owmers,  every  one  may  be  absolutely  prevented  from  seeking  to 
reduce  to  possession.  Xo  divesting  of  private  property,  under 
such  a  condition,  can  be  conceived  because  the  public  are  the 
o^vners,  and  the  enacting  by  the  State  of  a  law  as  to  the  public 
ownership  is  but  the  discharge  of  the  governmental  trust  rest- 
ing in  the  States  as  to  property  of  that  character.  On  the 
other  hand,  as  to  gas  and  oil,  the  surface  proprietors  within 
the  gas  field  all  have  the  right  to  reduce  to  possession  the  gas 
and  oil  beneath.  They  could  not  be  absolutely  deprived  of  this 
right  which  belongs  to  them  without  a  taking  of  private  prop- 
erty. But  there  is  a  co-equal  right  in  them  all  to  take  from 
a  common  source  of  supply,  the  two  substances  which  in  the 
nature  of  things  are  united,  though  separate.  It  follows  from 
the  essence  of  their  right  and  from  the  situation  of  the  things, 
as  to  which  it  can  be  exerted,  that  the  use  l)v  one  of  his  power 
to  seek  to  convert  a  part  of  the  common  fund  to  actual  posses- 
sion may  result  in  an  undue  proportion  lx>ing  attributed  to  one 
of  the  possessors  of  the  right,  to  the  annihilation  of  the  rights 
of  the  remainder.  Hence  it  is  that  the  legislative  power,  from 
the  peculiar  nature  of  the  right  and  objects  upon  which  it  is  to 
be  exerted,  can  be  manifested  for  the  purpose  of  protecting  ail 
the  collective  owners  by  securing  a  just  distribution,  to  arise 


LEGAL    STATUS.  41 

from  the  enjovnient  by  tLeni,  of  their  privilege  to  reduce  to  pos- 
session, and  to  reach  the  like  end  by  preventing  waste.  This 
necessarily  implied  legislative  authority  is  borne  out  by  the 
analogy  suggested  by  things  ferae  naturae,  which  it  is  unques- 
tioned the  legislature  has  the  authority  to  forbid  all  from  tak- 
ing, in  order  to  protect  them  from  undue  destruction,  so  that 
the  right  of  the  common  owners,  the  public,  to  reduce  to  posses- 
sion may  be  ultimately  efficaciously  enjoyed.  Viewed,  then, 
as  a  statute  to  protect  or  to  prevent  the  waste  of  the  common 
property  of  the  surface  o^vners,  the  law  of  the  State  of  Indiana 
which  is  here  attacked  because  it  is  asserted  that  it  divested 
private  property  without  due  compensation,  in  substance,  is  a 
statute  protecting  private  property  and  preventing  it  from  being 
taken  by  one  of  the  common  owners,  without  regard  to  the  en- 
joyment of  the  others.  Indeed,  the  entire  argument,  upon 
which  tlie  attack  on  the  statute  must  depend,  involves  a 
dilemma,  which  is  this:  If  the  right  of  the  collective  owners 
of  the  surface  to  take  from  the  common  fund,  and  thus  reduce 
a  portion  of  it  to  possession,  does  not  create  a  property  interest 
in  the  common  fund,  then  the  statute  does  not  provide  for  the 
taking  of  private  property  without  compensation.  If,  on  the 
other  hand,  there  be,  as  a  consequence  of  the  right  of  the  surr 
face  o"\vners  to  reduce  to  possession,  a  right  of  property  in  them, 
in  and  to  the  substances  contained  in  the  common  reservoir  of 
supply,  then  as  a  necessary  result  of  the  right  of  property,  its 
indivisible  quality  and  tlie  peculiar  iX)sition  of  the  things  to 
which  it  relates,  tliere  must  arise  the  legislative  power  to  pro- 
tect the  right  of  property  from  destruction.  To  illustrate  by 
another  form  of  statement,  the  argum.ent  is  this :  There  is 
property  in  the  surface  owners  in  the  gas  and  oil  held  in  the 
natural  reservoir.  Their  right  to  take  cannot  be  regulated 
without  divesting  them  of  their  property  without  adequate  com- 
pensation, in  violation  of  the  Fourteenth  Amendment,  and  this, 
although  it  be  that  if  regulation  cannot  be  exerted  one  property 
owner  may  deprive  all  the  others  of  their  rights,  since  his  act 
in  so  doing  will  be  damnum  absque  injuria.  This  is  but  to  say 
that  one  common  owner  may  divest  all  the  others  of  their  rights 
without  wTorng-doing,  but  the  lawmaking  power  cannot  protect 


42 


OIL    AND    GAS, 


all  the  owners  in  their  enjoyment  without  violating  the  Constitu- 
tion of  the  United  States."  '' 


§26.     Severance  of  oil  or  gas  from  realty. 

In  instances  of  solid  minerals  the  severance  of  them  by  arti- 
ficial means  renders  them  personal  property,  the  ownership  of 
which  is  presumptively  in  the  owner  of  the  land,  or  if  the  land 
has  been  leased  for  mining  purposes,  in  the  lessee.^^  But  if  a 
wrong-doer  with  felonious  intent  sever  the  mineral  and  take  it 
away,  his  act  is  not  a  larceny,  but  merely  a  trespass.^''  If  the 
act  of  severance  be  at  one  time,  and  the  carrying  away  at  an- 
other, the  taking  will,  however,  be  larceny."''  The  act  of  sever- 
ance and  the  act  of  carrying  away  must  be  a  continuing  one^ 
without  separation ;  for  if  it  is  not,  the  severed  mineral  becomes 
the  personal  property  of  the  owner  of  the  realty."^  It  matters 
not  that  the  mineral  is  severed  by  a  stranger ;  for  in  such  an 
instance  it  becomes  as  much  personal  property  as  if  the  owner 
had  severed  it;  "^  and  still  remains  the  property  of  the  land 
owner. '^  All  that  has  been  said  of  solid  minerals  is  true  of  oil 
and  gas.  As  soon  as  they  are  severed  from  the  earth  they  be- 
come personal  pro]Derty.'*     Whenever  oil  or  gas  is  brought  to 


17  Ohio  Oil  Co.  V.  Indiana,  177  U. 
S.  190;  20  Sup.  Ct.  Rep.  585;  Given 
V.  State  (Ind.),  66  N.  E.  Rep.  750; 
Richmond  Natural  Gas  Co.  v.  Enter- 
prise Natural  Gas  Co.  (Ind.  App.), 
66  N;  E.  Rep.  782;  Lowther  Oil  Co. 
V.  Miller,  etc.,  Co.  (W.  Va.),  44  S. 
E.  Rep.  4b3. 

For  waste  of  artesian  water,  see 
Huber  v.  Merkel  (Wis.),  94  N.  W. 
Rep.  354. 

IS  Leport  v.  Mining  Co.,  3  N.  J.  L 
J.  C80j  Brown  v.  Morris,  83  N.  C 
251 ;  Watts  v.  Tibbals,  6  Pa.  St.  447 
Rhoades  v.  Patric"k,  27  Pa.  St.  323 
Lyon  V.  Grorley,  53  Pa.  St.  261 
Green  v.  Ashland  Iron  Co.,  62  Pa 
St.  97;  Lykens  Valley  Coal  Co.  v 
Dock.  62  Pa.  St.  232;  Nohle  v.  Syl 
roster.  42  Vt.  146;  Forbes  v.  Gracey, 
94  U.  S.  762. 


V.      Steinlincr, 


Stevens,    1    Taunt 


in  People  V.  Williams,  35  Cat  671 ; 
Commonwealth  v.  Steinling,  156  Pa. 
St.  400;  27  Atl.  Rep.  297;  State  v. 
Burt,  64  N.  C.  619. 

20  Commonwealth  v.  Steinling, 
supra. 

21  Commonwealth 
supra. 

22  Attersoll 
183. 

23  Hughes  V.  United  Pipe  LinQS, 
119  N.  Y.  423;  23  N.  E.  Rep.  1042. 

24  Stoughton's  Appeal,  88  Pn.  St. 
198;  Shepherd  v.  McCIamont  oil^ 
Co.,  38  Hun  37;  Hail  v.  Reed.  15  P. 
Mon.  479;  11  Morr.  Min.  Rep.  lOS 
Hughes  V.  United  Pipe  Lines,  ftiiprn 
Wagner  v.  Mallory,  169  N.  Y.  501 
62  N.  E.  Rep.  584;  affirming  58  N 
Y.  Supp.  526. 


LEGAL    STATUS.  43 

the  surface  and  confined  in  tanks  or  pipe  lines  it  becomes  per- 
sonal property  of  the  owner  of  the  well."^  If  a  lessee  own  the 
well,  it  is  his  property,  unless  the  land  owner  is  entitled  to  a 
specific  part,  in  which  event,  they  own  it  jointly  until  a  division 
is  made.^"  If  oil  or  gas  be  taken  from  the  real  estate,  it  still 
belongs  to  the  owner  of  the  land  or  the  lessee,  as  the  case 
may  be.^" 


§27.     Recovery  of  severed  product. —  Trover. 

The  owner  of  the  land,  or  the  lessee  of  it,  from  which  oil  has 
been  taken  may  recover  possession  of  it  wherever  he  can  find  it ; 
and  for  that  purpose  an  action  of  replevin  will  lie;'^  or  he 
may  bring  an  action  in  trover.^^  A  purchaser  of  oil  wrongfully 
taken  from  the  soil  gains  no  title  to  it;  and  the  owner  of  the 
land  may  pursue  and  recover  it  or  its  value  wherever  he  may 
find  it."''  Even  a  purchaser  from  a  person  who  took  the  oil  from 
land  under  a  license  from  a  co-tenant  is  liable  for  its  conver- 
sion, the  same  as  the  person  who  took  it.^^  In  the  case  of  a  life 
estate,  the  remainderman  who  is  in  being  and  would  take  the 
estate  if  the  life  estate  w^ere  extinguished,  will  be  entitled  to 
the  possession  of  all  the  oil  taken  by  the  life  tenant  or  by  a 
stranger  from  wells  sunk  after  the  life  estate  was  created. ^^ 
But  neither  replevin  nor  trover  will  lie  against  a  pipe  line  com- 
pany for  the  value  of  oil  taken  from  land  by  one  in  adverse 


25  Kelly  V.  Ohio  Oil  Co.,  57  Ohio  562;  27  S.  E.  Rep.  411;  38  L.  R.  A. 
St.  317;  49  N.  E.  Rep.  399;  39  L.  R.  694;  64  Am.  St.  Rep.  891;  Omaha, 
A.  765;  63  Am.  St.  Rep.  721;  State  etc.,  Co.  v.  Tabor.  13  Colo.  41;  21 
V.  Indiana,  etc.,  Co.,   120  Ind.  575;  Pac.  Rep.  925. 

22  N.  E.  Rep.  778;  6  L.  R.  A.  579;  29  Hail  v.  Reed,  15  B.  Mon.  479; 

29  Am.  and  Eng.  Corp.  Cas.  237.  11  Morr.  Min.  Rep.  103;  Oak  Ridge 

26  Carter  v.  County  Court,  45  W.  Coal  Co.  v.  Rogers,  108  Pa.  St.  147. 
Va.  806;  32  S.  E.  Rep.  216;  43  L.  Contra,  Kier  v.  Peterson.  41  Pa.  St. 
R.  A.  725.  357. 

27  Williamson  v.  Jones,  43  W.  Va.  3o  Hughes   v.   United   Pipe   Lines, 
562;  27  S.  E.  Rep.  411;  38  L.  R.  A.  119  N.  Y.  423;  23  N.  E.  Rep.  1042. 
694 ;   64  Am.  St.  Rep.  891 ;   Hughes  3i  Omaha,   etc.,   Co.  v.  Tabor,   su- 
V.  United  Pipe  Lines,  supra.  pra. 

28  Williamson  v.  Jones.  43  W.  Va.  32  Williamson  v.  Jones,  supra. 


4:4  OIL    AND    GAS. 

possession  of  such  land,  and  delivered  to  the  company  for  trans- 
portation.^^ 

§28.     Wasting  gas. —  Injunction. 

So  strongly  is  the  notion  of  absolute  ownership  of  the  gas 
and  oil  in  the  land  by  the  owner  of  it,  beneath  which  it  is  found, 
embedded  in  our  law,  that  without  the  aid  of  a  statute  the 
owner  of  such  land  cannot  be  prevented  from  wasting  it  by  the 
owner  of  the  adjoining  premises.  In  the  case  of  gas  where  two 
wells  are  placed  within  a  few  feet  of  each  other  it  is  clear  that 
they  draw  gas  from  the  same  reservoir ;  and  this  is  true,  of 
course,  when  a  boundary  line  between  two  tracts  of  land  run  be- 
tween them.  If,  therefore,  the  owner  of  one  of  the  wells  persist 
in  leaving  his  well  open,  not  using  the  gas,  it  is  quite  manifest 
that  the  gas  under  the  surface  of  the  tract,  or  under  a  portion  of 
it,  on  which  the  well  is  not  situated,  will  be  drawn  off  and 
wasted.  And  yet,  with  the  notions  of  absolute  ownership  pre- 
vailing with  respect  to  gas  beneath  the  surface  of  land,  a  court  of 
equity  will  not  enjoin  the  waste,  unless  some  positive  statute  for- 
bid it.^*  But  where  a  statute  forbade  such  a  waste  of  gas,  it  was 
held  that  the  State,  in  its  sovereign  capacity,  could  enjoin  the 
waste;  and  the  statute  was  upheld  on  the  tlieory  that  the  land 
owner  had  no  title  to  the  gas  or  oil  beneath  the  surface  of  the 
tract  of  land  he  owns,  except  the  right  to  drill  on  his  own  land  to 
take  it  into  his  possession ;  and  as  long  as  he  had  no  title  to  it, 
the  legislature  had  the  right  to  prescribe  the  mode  of  tak- 
ing it.^^ 

33Giffin  V.  Southwest,  etc.,  Lines,  39   Wkly   L.   Bull.   54.     See  6  Ohio 

172  Pa.  St.  580;   33  Atl.  Rep.  578.  Cir.   Dec.    470;    40   Wkly.   L.    Bull. 

See  Anderson  v.  Hapler,  34  111.  436.  338;   3  Ohio  Dec.   186. 

34  Hague  V.  Wheeler,  157  Pa.  St.  35  Manufacturers',  etc.,  Co.  v.  In- 

324;   33  W.  N.  C.  83;   27  Atl.  Rep.  diana.  etc.,  Co.,  155  Ind.  461;  57  N. 

/14;    22    L.    R.    A.    141;    Jones    v.  E.  Rep.  912;  50  L.  R.  A.  768;  Ohio 

Forest  City  Oil  Co.,  194  Pa.  St.  379;  Oil  Co.  v.  Indiana,  177  U.  S.  190;  20 

44  Atl.  1074 ;  48  L.  R.  A.  748 ;  Kelly  Sup.   Ct.   Rep.   585 ;   Given  v.   State 

V.  Ohio  Oil  Co.,  57  Ohio  St.  317;  49  (Ind.),   66   N.   E.   Rep.    750;    Rich- 

N.  E.  Rep.  399 ;  39  L.  R.  A.  765 ;  63  mond,   etc.,    Co.   v.    Enterprise,   etc., 

Am.  St.  Rep.  721,  affirming  9  Ohio  Co.  (Ind.  App.),  66  N.  E.  Rep.  782. 
C.  C.  Rep.  511;  38  Wkly.  L.  B.  299; 


LEGAL    STATUS.  45 

The  State  also  has  the  power  to  prevent  the  waste  of  gas  by  the 
use  of  Flambeau  Burners.^*' 

§29.     Increasing  flow  of  gas  by  pumping  well. 

While  every  land  owner  has  the  right  to  bore  for  gas  on  his 
own  land,  and  to  use  snch  portion  of  it  as  rises  by  natural  laws 
to  the  surface  in  his  wells  ot  flows  into  his  pipes,  yet  an  adjoin- 
ing owner,  at  least,  has  no  right  to  induce  an  unnatural  flow 
into  or  through  his  well,  or  do  any  act  with  reference  to  the 
common  reservoir  and  the  gas  in  it,  injurious  to  or  calculated 
to  destroy  it ;  and  an  action  may  be  maintained  by  the  owners 
of  the  superincumbent  lands  to  enjoin  another  owner  from  using 
devices  for  pumping,  or  any  other  artificial  process,  that  shall 
have  the  effect  of  increasing  the  natural  flow  of  the  gas.^^  In 
an  earlier  Indiana  case  a  different  rule  was  adopted.^^  In  tlie 
more  recent  Indiana  case  the  following  language  was  used  in 
discussing  this  question : 

"  Natural  gas  is  a  fluid  mineral  substance,  subterraneous  in 
its  origin  and  location,  possessing,  in  a  restricted  degree,  the 
properties  of  underground  waters,  and  resembling  water  in  some 
of  its  habits.  Unlike  water,  it  is  not  generally  distributed,  and, 
so  far  as  now  understood,  it  can  be  used  for  but  few  purposes, 
the  most  important  being  that  of  fuel.  Its  physical  occurrence 
is  in  limited  quantities  only,  within  circumscribed  areas  of 
greater  or  less  extent.  If  it  could  be  dealt  with  as  subterranean 
waters,  there  would  be  little  difficulty  in  detenuining  the  rules 
by  which  the  rights  of  land  owners,  and  other  persons  interested 
in  it,  should  be  governed.  But  the  difference  between  natural 
gas  and  underground  waters,  whether  flowing  in  channels  or 
percolating  the  earth,  is  so  marked  that  the  principles  which  the 
courts  apply  to  questions  relating  to  the  latter  are  not  adapted 
to  the  adjustment  of  the  difficulties  arising  from  conflicting  in,- 

36Townsend    v.    State,     147    Ind.  diana,   etc..    Co.,    155    Ind.   461;    57 

624;  47  N.  E.  Rep.  19;   37  L.  R.  A.  N.  E.  Rep.  912;  50  L.  R.  A.  768. 

294;    Given   v.    State,   supra;  Rich-  38  People's  Gas  Co.  v.  Tyner,   131 

mond,   etc.,   Co.   v.   Enterprise,   etc.,  Ind.  277;   31  N.  E.  Rep.  59;    16  L. 

Co.,  supra.  R.  A.  443. 

37  Manvifacturers',  etc.,  Co.  v.  In- 


4G  OIL    AND    GAS. 

terests  in  tliis  new  and  peculiar  fluid.  Natural  gas  being  eon- 
fined  witliin  limited  territorial  areas,  and  being  accessible  only 
by  means  of  wells  or  openings  upon  the  lands  underneath  which 
it  exists,  is  not  the  subject  of  public  rights  in  the  same  sense, 
or  to  the  same  extent,  as  animals  ferae  naturae,  and  the  like, 
are  said  to  be.  Without  the  consent  of  the  owner  of  the  land, 
the  public  cannot  appropriate  it,  use  it,  or  enjoy  any  benefit 
whatever  from  it.  This  power  of  the  owner  of  the  land  to  ex- 
clude the  public  from  its  use  and  enjoyment  plainly  distin- 
guishes it  from  all  other  things  with  which  it  has  been  compared, 
in  the  use,  enjoyment  and  control,  of  which  the  public  has  the 
right  to  participate,  and  tends  to  impress  upon  it,  even  when  in 
the  ground  in  its  natural  state,  at  least  in  a  qualified  degree,  one 
of  the  characteristics  or  attributes  of  private  property.  In  the 
case  of  animals  ferae  naturae,  fish,  and  the  like,  this  public 
interest  is  said  to  be  represented  by  the  sovereign  or  State.  So, 
in  the  case  of  navigable  rivers  and  public  highways,  tlie  State, 
in  behalf  of  the  public,  has  the  right  to  protect  them  from 
injury,  misuse,  or  destruction.  But  in  the  case  of  natural  gas, 
there  are  reasons  why  the  right  to  protect  it  from  entire  destruo- 
tion  while  in  the  ground  should  be  exercised  by  the  o^vners  of 
the  land  who  are  interested  in  the  common  reservoir.  From 
the  necessity  of  the  case,  this  right  ought  to  reside  somewhere, 
and  we  are  of  the  opinion  that  it  is  held,  and  may  be  exercised, 
iby  the  owners  of  the  land,  as  well  as  by  the  State.  Natural  gas 
in  the  groimd  is  so  far  the  subject  of  property  rights  in  the 
owners  of  the  superincumbent  lands,  that  while  each  of  them 
has  the  right  to  bore  or  mine  for  it  on  his  own  land,  and  to  use 
such  portion  of  it  as  when  left  to  the  natural  laws  of  fiowage 
may  rise  in  tlie  wells  of  such  owner  and  into  his  pipes,  no  one 
of  the  owners  of  such  lands  has  the  right,  without  the  consent  of 
all  the  other  owners  to  induce  an  unnatural  flow  into,  or  through 
liis  own  wells,  or  to  do  any  act  with  reference  to  the  common 
reference  to  the  common  reservoir,  and  body  of  gas  therein, 
injurious  to,  or  calculated  to  destroy  it.  In  the  case  of  lakes, 
or  flowing  streams,  it  cannot  be  said  that  any  particular  part, 
or  quantity,  or  proportion  of  the  water  in  them  belongs  to  any 
particular  land  orrijxirinn  cviior,  each  having  an  eqmil  right  to 


I.EGAI.    STATUS.  4T 

take  what  reasonable  quantity  lie  will  for  his  own  use.  But 
the  limitation  is  upon  the  manner  of  taking.  So,  in  the  case  of 
natural  gas,  tlie  manner  of  taking  must  be  reasonable,  and  not 
injurious  to,  or  destructive  of,  the  common  source  from  which 
the  gas  is  drawn.  The  right  of  each  owner  to  take  the  gas 
from  tlie  common  reservoir  is  recognized  by  the  law,  but  this 
right  is  rendered  valueless  if  one  well  owner  may  so  exercise 
his  right  as  to  destroy  the  reservoir,  or  to  change  its  condition  in 
such  manner  that  the  gas  Avill  no  longer  exist  there."  ^^ 

§30.     Pumping  oil  wells. 

It  is  clear  that  the  doctrine  of  the  Indiana  cases  has  its  lim- 
itations, and  must  not  be  carried  too  far.  For  in  the  case  of  oil 
wells,  if  pumps  cannot  be  used,  little  oil  can  be  taken  out,  and 
the  land  as  an  oil  territory  is  practically  useless.  It  is  prac- 
tically immaterial  whether  a  gas  well  can  be  pumped  if  gas 
cannot  be  otherwise  obtained;  for  when  it  becomes  necessary  to 
]nimp  a  gas  well  in  order  to  get  gas  out  of  it,  it  is  of  no  value 
whatever  as  a  gas  well.  But  in  the  case  of  oil  wells,  hundreds, 
if  not  thousands  are  pumped  every  day ;  and  if  the  right  to  use 
a  pump  to  get  oil  from  them  did  not  exist,  few'  would  ever  be 
drilled.  We  think  the  right  to  pump  them  clearly  exists.^"  It 
should  be  borne  in  mind  that  in  the  Indiana  cases  in  which  the 
right  to  use  a  pump  was  discussed,  the  court  had  before  it  the 
right  to  pump  a  gas  well,  and  not  an  oil  well.*^ 

§31.     Exploding  nitroglycerin  in  well  to  increase  flow. 

The  o\mer  of  a  well  has  the  right  to  explode  nitroglycerin  or 
other  explosive  in  a  well  to  increase  the  flow  of  gas  or  oil,  even 

39  Manufacturers',  etc.,  Co.  v.  In-  the   well,   consequently  not  increas- 

diana,  etc.,  Co.,  155  Ind.  461;  57  N.  ing  the  natural  flow. 
E.  Rep.  912;  .50  L.  K.  A.  768;  Rich-  4 o  Jones  v.  Forest  Oil  Co.,  194  Pa., 

mond  Natural  Gas  Co.  v.  Enterprise  St.  .379;  44  Atl.  Rep.  1074;  48  i^.  R. 

Natural  Gas  Co.   (Ind.  App.).  66  N.  A.  748. 

E.    Rep.    782.     In   this   last   case   it  4i  yee  Manufacturers',  etc.,  Co.  v. 

was  held  that  no  offence  was  com-  Indiana,  etc.,  Co..  155  Ind.  461:  57 

mitted  where  the  pump  did  not  de-  N.   E.  Rep.   912;   50  L.  R.  A.   767; 

stroy  the  back  pressure  of  the  gas.  Manufacturers',  etc.,  Co.  v.  Indiana, 

and  so  did  not  create  a   suction  in  etc..  Co.,  156  Ind.  679;  58  N.  E.  Rep. 

706;  53  L.  R.  A.  134. 


48  OIL    AND    GAS. 

though  he  thereby  may,  or  actually  does,  draw  away  the  gas  or 
oil  in  the  adjoining  territory.*" 

§32.     Maliciously  boring  well  to  injure  another. 

No  one  has  the  right  to  use  his  property  for  the  sole  purpose 
of  injuring  another.  Such  a  right  is  not  incident  to  ownership, 
and  the  right  to  use  proi>erty  in  that  way  does  not  extend  that 
far.  So  no  one  has  the  right  to  dig  a  well  solely  to  drain  an- 
other's water  well.  Such  an  act  in  law  is  malicious.*^  What  is 
true  of  a  well  of  water  is  true  of  a  gas  or  oil  well.  If  the  owner 
of  land  sink  an  oil  or  gas  well  on  his  own  land  for  the  sole  pur- 
pose of  injuring  the  oil  or  gas  well  of  another,  and  it  has  that 
effect,  he  may  be  restrained  by  injunction.^* 

§33.     Measure  of  damages  for  unlawfully  taking  oil  and  gas  from 
the  soil. 

If  oil  has  been  unlawfully  taken  from  the  soil,  the  owner, 
whoever  he  may  be,  has  the  option  either  to  recover  the  oil  or 
its  value. *^  Where  the  act  of  taking  is  a  trespass,  according 
to  one  line  of  cases  concerning  solid  minerals,  the  wrong-doer 
is  not  entitled  to  be  credited  with  the  cost  of  taking  out  the 
mineral,  if  he  knew  it  belonged  to  the  plaintiff.^*^      Another  line 

42  People's  Gas  Co.  v.  Tyner,   131  W.   R.   685;    Eideout  v.   Knox,    148 

Ind.  277;  31  N.  E.  Rep.  59;  16  L.  R.  Mass.  368;   19  N.  E.  Rep.  390. 

A.  443.  44  Dictum    in   Hague   v.    Wheeler, 

The  lessee  is  not  bound  to  resort  157  Pa.  St.  324;  33  W.  N.  C.  83;  27 

to  exploding  nitroglycerin  in  a  well  Atl.  Rep.  714;  22  L.  R.  A.  141. 

he  has  drilled,  in  order  to  obtain  oil  45  Buckley  v.  Kenyon,  10  East  139. 

or  gas  and  comply  with  his  duty  to  46  The  cases  we  cite  are  cases  with 

use  diligence  in  the  development  of  respect   to    solid    minerals.     Martin 

the    premises,    especially    so    where  v.  Porter,   5  M.  and  W.  352;   2  H. 

there  is   little  probability  that  the  and  H.  70;  Benson,  etc.,  Co.  v.  Alta, 

explosion  would  produce  paying  re-  etc.,  Co.,  145  U.  S.  428;  12  Sup.  Ct. 

suits.     Rice   V.    Ege.    42    Fed.    Rep.  Rep.  877;  Bennett  v.  Thompson.  13 

661.     See  Foster  V.  Elk  Fork  Oil  and  Ired.    L.    146;    Kock    v.    Maryland 

Gas  Co.,  90  Fed.  Rop.  178.  Coal  Co.,  68  Md.  125;   11  Atl.  Rep. 

43Chasemore  v.  Richards,  7  H.  L.  700;   Jegon  v.   Vivian,  L.  R.  6   Ch. 

Cas.  349;  2  H.  and  N.  168;  -^9  L.  J.  App.  742;  40  L.  J.  Ch.  389;   19  \V. 

Exch.   81;    5   Jur.    (N.    S.)    873;    7  R.  365;  McLean  County  Coal  Co.  v. 


LEGAL    STATUS.  49 

of  cases  holds,  in  case  of  solid  minerals,  that  the  measure  of 
damages  is  the  value  of  the  mineral  as  it  existed  in  place  before 
it  was  broken  down.*'  It  must  be  patent,  however,  to  eveiy 
one  that  the  last  rule  cannot  be  applied  to  a  case  of  oil  or  gas, 
because  of  the  impossibility  of  determining  the  value  of  either 
gas  or  oil  in  situ.  In  tlie  case  of  a  wilful  or  negligent  tres- 
pass the  rule  should  follow  the  rule  first  above  enumerated,  and 
the  trespasser  charged  with  the  value  of  the  oil  or  gas  taken, 
without  any  deduction  for  the  cost  of  taking  it  out ;  but  if  the 
trespasser  was  innocent  of  the  fact  that  he  was  such,  and  is  not 
guilty  of  negligence  in  entering  upon  the  ground  and  taking 
the  oil  or  gas,  the  cost  of  extracting  it  should  be  allowed  him. 
This  is  the  general  rule  where  the  trespasser  is  innocent  of  any 
intent  to  do  wrong,  or  has  not  been  guilty  of  negligence.*^ 

§34.     When  lessee  acquires  title  to  oil. 

A  mere  lessee  —  one  who  has  no  interest  in  the  land  itself,  as 
a  grantee  beneath  the  surface  —  does  not  acquire  title  to  the 
oil  in  the  leased  premises  until  it  has  l)een  taken  from  the 
ground.*^     In  passing  on  this  case  the  court  said : 

"  It  will  be  observed  that  there  is,  by  the  terms  of  the  lease 
no  grant  of  the  oil  as  it  exists  in  the  earth,  so  that  there  is  no 

Long,   81  111.   359;    Wild  v.  Holt,  9  432;  36  L.  J.  Ch.  491;  16  L.  T.  736; 

M.  and  W.  672;   1  D.  N.  S.  876;   11  15  W.  R.   1105;   In  re  United  Mer- 

L.  J.  Exch.  285;  Morgan  v.  Powell,  thyr  Coal  Co.,  L.  R.  15;  Eq.  46;  21 

9  M.  and  W.   672;    Baker  v.  Hart,  W.  R.  117;  Livingston  v.  Rawyards, 

123  N.  Y.  470;  25  X.  E.  Rep.  948.  5   App.   Cas.   25;    42   L.   T.   334;    28 

Another   line   of   cases   hold   that  W.  R.  357;   Powell  v.  Aikin,  4  Kay 

the  measvire  of  damages  is  the  value  and  J.  343 ;  Cheesman  v.  Shreve.  40 

of  the  mineral  after  severance  and  Fed.  Rep.  787;  Colorado,  etc.,  Co.  v. 

before  removal.     Llynvi  Coal  Co.  v.  Turck,  70  Fed.  Rep.  294;  Golden  Re- 

Brogden,  L.  R.  11 ;  Eq.  183;  40  L.  J.  ward  Mining  Co.  v.  Buxton,  97  Fed. 

Ch.  46;  24  L.  T.  612;  Robertson  v.  Rep.    413;    Durant    Mining    Co.    v. 

Jones,   71   111.  405;   Sunnyside  Coal  Percy,  etc.,  Co.,  93  Fed.  Rep.  166. 

Co.  V.  Reitz,  14  Ind.  App.  478;   43  48  Dyke  v.   National   Transit   Co.. 

N.  E.  Rep.  46;  Tliomas,  etc.,  Co.  v.  22  N.  Y.  App.  Div.   360;   49  N..  Y. 

Herter,  60  111.  App.  58 ;  Illinois,  etc.,  Supp.   180. 

Ry.  Co.  V.  Ogle,  82  111.  627 ;  Barton  49  Wagner  v.  Mallory,   169  N.  Y. 

Coal  Co.  V.  Cox,  39  Md.  1 ;  Franklin  501 ;   6:^  N.  E.  Rep.   584 ;   affirming 

Coal  Co.  V.  McMillan,  49  Md.  .549.  58   N.   Y.    Supp.   526 ;    Lowther   Oil 

47  Wood  V.  Morewood,  3  Q.  B.  440,  Co.   v.   Miller,   etc.,   Co.     (W.   Va. ) . 

note;  Hilton  v.  Woods,  L.  R.  4  Eq.  44   S.  E.   Rep.  433. 


50  on,    ANL    GAS, 

passing  of  the  title  to  the  oil  as  it  exists  in  its  natural  state^ 
but  that  the  right  is  limited  to  the  mining  and  excavating,  or 
the  pumping  and  raising,  of  the  oil  from  the  premises.  Jt  is 
a  right  to  produce  or  extract  the  oil  iroxn  the  earth,  yielding 
one-eighth  thereof  to  the  landlord.  What  was  his  riglii  ?  Was 
it  real  estate  or  personal  property  ?  It  is  said  that  leases  of 
this  character  are  incorporeal  hereditaments,  and  that  petroleum 
oil  is  a  mineral,  and  is  a  part  of  the  royalty  like  coal,  iron 
and  copper.  It  is  true,  it  is  a  mineral  substance;  but  it  widely 
differs  from  the  minerals  mentioned,  which  are  solids,  having 
a  iixed  location  in  the  earth,  like  the  rock  itself.  Petroleum 
oil  is  a  fluid  found  in  the  porous  sand  rock  of  the  earth.  In 
some  instances  it  doubtless  exists  in  pools,  but  where  are  the 
pools  located  ?  They  may  be  under  the  lands  in  which  the  well 
is  drilled.  They  may  be  in  the  abutting  or  remote  lands,  and 
may  drain  into  the  wells  through  seams  or  crevices  in  the  rock, 
and  then  be  extracted  from  the  earth  and  reduced  to  possession 
by  the  operator.  In  this  respect  oil  resembles  water  as  it 
exists  in  the  earth  —  especially  salt  and  mineral  waters,  which 
have  a  market  value  —  and  is  largely  governed  by  the  same 
rule  of  law.  It  consequently  was  held  at  a  very  early  day  in 
the  history  of  the  petroleum  oil  production  that  a  man  could 
not  be  restrained  by  his  abutting  neighbor  from  boring  for  oil 
upon  his  own  premises,  although  he  located  his  well  within  a 
few  feet  of  the  line,  and  would  necessarily  drain  the  oil  from 
his  neighbor's  land,  if  any  existed  therein.  We  consequently 
are  of  the  opinion  that  no  title  to  the  oil  vested  in  the  lessee  until 
it  had  been  taken  from  the  ground  and  reduced  to  possession." 

§35.     Waste,—  part  of  realty Reservation. 

Where  a  tenant  for  life  was  taking  out  oil  and  gas,  it  was 
lield  that  such  oil  and  gas  formed  a  part  of  the  realty,  that  he 
conld  not  drill  wells  in  order  to  take  out  the  oil  or  gas,^*'  and 
that  drilling  a  well  and  taking  out  gas  or  oil  was  an  act  of  waste 

^•'> 'l  hougli  lie  could  use  the  wells 
drilled  before  the  life  estate  was 
estaolished. 


l.EGAL    STATUS.  51 

within  the  legal  definition  of  that,  tenn.^^  So  in  the  case  of 
^n  infant's  lands,  the  guardian  cannot  drill  a  well,  extract  the 
-oil  or  gas  and  sell  it ;  nor  can  he  dispose  of  it  by  way  of  lease  or 
otherwise.^"  The  same  is  true  of  a  guardian  of  an  insane  or  in- 
competent person. '^'^  A  conveyance  of  real  estate,  but  reserving 
"  all  mines,  minerals  and  metals  in  and  under  the  land,"  is  a 
reservation  of  the  oil  and  gas.^*  A  demise  or  conveyance  of  a 
tract  of  land,  but  reserving  ten  acres  near  the  dwelling  hovise  on 
which  no  wells  shall  be  drilled,  is  a  conveyance  of  the  oil  and 
gas  under  the  ten  acres. '"'^  As  between  the  first  lessee  and  a 
second  one  where  the  latter  takes  out  oil  or  gas  without  the  eon- 
sent  of  the  first,  such  oil  or  gas  must  be  treated,  before  it  is 
extracted,  as  a  part  of  the  realty  and  the  taking  out  of  it  as  a 
waste.^*^  It  is  not  waste,  however,  for  a  land  owner  to  put  down 
wells  near  his  boundary  lines,  though  the  effect  be  to  draw  the 
oil  from  beneath  the  surface  of  the  adjoining  land  owned  by 
another.'^^  To  extract  it  unlawfully  is  an  irreparable  injury 
which  to  stop  or  prevent  injunction  lies.^^ 

§36.     Partition. 

The  grantee  of  a  mere  mining  right  cannot  maintain  an  action 
:for  partition  as  against  his  grantor. ^'^  Nor  can  the  owners  of 
mineral  rights  in  oil  and  gas  have  partition,  for  the  reason  that 
neither  gas  nor  oil  is  capable  of  distinct  ownership  so  long  as  it 
is  in  place.  Today  they  may  form  a  part  of  the  premises  of 
the  land  occupied  by  their  owner,  but  tomorrow  they  may  have 

51  Williamson  v.  Jones,  43  W.  Va.  sn  Brown  v.  Spilman,  155  U.  S. 
562;  2/  S.  E.  Rep.  411;  38  L.  H.  A.       665;    15  Sup.  Ct.  IJep.  245. 

694;  64  Am.  St.  Kep.  891;  Marshall  sc  Bettman  v.  Harness,  42  VV.  Va. 

V.  Mellon.  170  Pn.  St.  371;   36  Atl.  443;  26  S.  E.  Hep.  271;    .36  L.  R.  A. 

Pep.  201 ;  35  L.  H.  A.  816.  566. 

52  Stoughton's  Appeal,  88  Pa.  St.  57  Kdly  v.  Ohio  Oil  Co.,  57  Ohio 
198.  St.  317;  49  N.  E.  Rep.  399;  39  L.  K. 

53  South   Pennsylvania    Oil   Co.   v.  A.  765;  63  Am.  St.  Rep.  765. 
Mclntire,  44  W.  Va.  296;   28  S.   E.  es  Moore   v.   Jennings,  47    W.   Va. 
Rep.  922.  181;  34  S.  E.  Rep.  793. 

54  Murray    v.    Allard,    100,  Tenn.    .       59  Smith  v.  Cooley,  65  Cal.  46. 
100;  43  S.  W.  Eep.  353;  39  L.  R.  A. 

249;  66  Am.  St.  Rep.  740. 


Oli  OIL    AND    GAS. 

escaped  and  formed  a  part  of  the  adjoining  or  even  other  land, 
without  the  volition  or  any  act  of  their  owners.^" 

§37.     Oil  and  gas  not  synonymous. 

Oil  and  gas  are  not  synonymous ;  and  a  lease  for  oil  purposes 
does  not  embrace  the  right  to  take  gas.  If  the  lease  requires  the 
production  of  oil,  the  production  of  gas  will  not  satisfy  the 
covenant  requiring  a  development,  within  a  certain  time,  of  the 
territory  for  oil.*'^ 

S38.     "  Other  valuable  volatile  substances." 

O 

Where  the  phrase  "  other  valuable  volatile  substances  "  was 
used  in  a  lease  in  connection  with  the  words  "  petroleum,  rock 
or  carbon  oil,"  the  court  ordered  the  issue  to  be  tried  by  a  jury, 
whether  or  not  natural  gas  was  included  in  the  words  first 
quoted,  for  the  reason  that  the  words  have  no  well  defined  mean- 
ing, and  are  ambiguous.*'" 

§39.     Natural  gas  not  heat. 

Natural  gas  is  not  heat  Avithin  the  meaning  of  a  statute  pro- 
viding for  the  incorporation  of  companies  to  supply  heat.^^ 

§40.     Gas  and  oil  an  article  of  commerce. 

Both  gas  and  oil  are  articles  of  commerce,  when  severed  from 
the  soil,  not,  however,  while  remaining  in  it.  When  gas  is  car- 
ried from  State  to  State  it  is  an  article  of  interstate  commerce, 
lliough  carried  in  pipe  lines,  as  much  so  as  coal,  iron  ore  or  any 

f.oHall  V.  Vernon,  47  W.  Va.  205;  Peerless   Eefining  Co.,   7   Ohio   Dec. 

M  S.  E.  l^ep.  704;  49  L.  R.  A.  4G4.  .368;  i4  Ohio  C.  C.  315. 

See  Carter  v.  Tyler   County  Court,  "s  Ford  v.  Buchanan,  111   Pa.  St. 

45  W.  Va.  80fi;   32  S.  E.  Rep.  21G;  31;  2  Atl.  Pvep.  330. 

43  L.  P.  A.  725.  C3  Emerson  y.  Commonwealth,  108 

<'i  Palmer   v.    Truby,    136   Pa.    St.  Pa.    St.    126;    Lebanon    Gas    Co.    v. 

556;    20   Atl.    Pep.    516;    Taylor   v.  Lebanon  Fuel,  etc.,  Co.,  5  Pa.  Dist. 

Pep.  ,529;  18  Pa.  Co.  Ct.  Pvep.  223. 


LEGAL    STxVTUS.  53 

other  mineral;  and  no  greater  restrictions  can  be  laid  upon  it 
than  can  be  laid  upon  solid  minerals  severed  from  the  soil,  or 
any  other  article  of  commerce.  The  carriage  of  oil  and  sas 
beyond  the  boundaries  of  that  State  cannot  be  prohibited. 


ib"- 


§41.     Judicial  notice. 

Courts  will  taJ\e  judicial  notice  of  the  properties  of  petroleum 
and  natural  gas,  and  that  the  latter  is  a  highly  inflammable  and 
dangerous  substance."^  They  will  not,  however,  presume  or 
take  judicial  notice  that  gas  confined  in  an  iron  pipe,  is,  in  that 
condition,  a  dangerous  element  and  liable  to  explode. "^"^  So  the 
courts  will  take  notice  of  the  methods  of  oi>erating  for  oil  and 
gas,  the  means  of  their  conduct  to  the  points  of  consumption, 
and  the  facts  of  the  odor  and  noise  incident  to  their  produc- 
tion.''^ Courts  will  also  take  judicial  notice  that  coal  oil  is 
inflammable ;  ^®  but  they  will  not  take  judicial  notice  that 
kerosene  oil  is  a  refined  coal  oil,  or  a  refined  earth  oil,*'"  or  a 
''  burning  fluid  "  or  "  chemical  oil  "  as  such  words  are  used  in 
a  policy  of  insurance  forbidding  the  use  of  such  articles  on  the 
insured  premises.'^'^  Where  the  Legislature  had  declared  that 
certain  grades  and  qualities  of  kerosene  are  proper  and  safe  to 
use,  it  was  decided  that  judicial  notice  could  not  be  invoked  to 
establish  that  kerosene  used  in  a  certain  case  was  in  fact  inflam- 

64  state  V.   Indiana,  etc.,  Co..   120  28  Am.  St.  Rep.  203;   Indiana,  etc., 

Ind.  575;  22  N.  E.  Rep.  778;  6  L.  R.  Co.  v.  Jones,  14  Ind.  App.  55;  42  N. 

A.  570 ;  29  Am.  and  Eng.  Corp.  Cas.  E.  Rep.  487. 

237 ;  2  Inter  St.  Com.  Rep.  758.     See  a    court    will    not    take    judicial 

Columbia  Conduit   Co.   v.   Com..   90  notice   that   dry.    tine    coal    dust    is 

Pa.   St.   307 ;    West  Virginia  Trans-  dangerous  and  an  explosive  element, 

portation   Co.   v.   Volcanic    Oil    and  Cherokee,    etc.,    Co.    v.    Wilson,    47 

Coal  Co.,  5  W.  Va.  382;  Jamieson  v.  Kan.  4G0;  28  Pac.  Rep.   178. 

Indiana   Natural   Gas   Co..    128   Ind.  66  Indiana,  etc..   Co.  v.  Jones,  sti- 

555;  28  N.  E.  Rep.  76;   12  L.  R.  A.  pra. 

652;  34  Am.  and  Eng.  Corp.  Cas.  I.  e?  Brown   v.    Spilman,    155    U.    S. 

cr>  Jamieson   v.    Indiana,  etc.,   Co.,  670;  15  Sup.  Ct.  Rep.  245. 

128  Ind.  5-55;  28  N.  E.  Rep.  76;   12  es  state  v.  Hayes,  78  Mo.  307. 

L.  R.  A.  652;  34  Am.  and  Eng.  Corp.  eo  Bennett  v.  North   British,  etc., 

Cas.  I;  Alexandria,  etc.,  Co.  v.  Irish.  Ins.  Co.,  8  Daly  471. 

16  Ind.  App.  534;  44  N.  E.  Rep.  680;  70  Mark  v.  National  Fire  Ins.  Co., 

Mississinewa  Mining  Co.  v.  Patton,  24  Hun  565;  affirmed  91  N.  Y.  663. 

129  Ind.  472;   28  N.  L.  Rep.   1113; 


54  OIL    AND    GAS. 

mable  or  explosive/^  Nor  will  the  courts  take  judicial  notice 
tliat  gill  and  turpentine  are  inflammable  liquids,  within  the 
meaning  of  tliat  term  as  used  in  an  insurance  policy  that  pro- 
vides it  shall  be  void  if  "  inflammable  liquids  "  are  kept  on  the 
premises/' 

§42.     Judicial  knowledge  of  oil  and  gas  properties. 

"  It  is  well  understood  among  oil  operators  tJiat  the  fluid  is 
found  deposited  in  a  porous  sand  rock,  at  a  distance  ranging 
from  five  hundred  to  three  thousand  feet  below  the  surface. 
This  rock  is  saturated  throughout  its  extent  with  oil,  and  when 
the  hard  stratum  overlying  it  is  pierced  by  the  drill,  the  oil 
and  gas  find  vent,  and  are  forced,  by  the  pressure  to  which  they 
are  subject,  into  and  through  the  Avell  to  the  surface.  After 
this  pressure  is  relieved  by  the  outflow,  the  wells  become  less 
active.  The  movement  of  the  oil  in  the  sand  rock  grows  slug- 
gish, and  it  becomes  necessary  to  pump  the  wells  both  to  quicken 
the  movement  of  oil  from  the  surrounding  rock,  and  to  lift  it 
from  the  chamber  at  the  bottom  of  the  well  to  the  surface.  Aji 
oil  or  gas  well  may  thus  draw  its  product  from  an  indefinite  dis- 
tance, and  in  time  exhaust  a  large  space.  Exact  knowledge  on 
this  subject  is  not  at  present  attainable,  but  the  vagrant  char- 
acter of  the  mineral,  and  the  porous  sand  rock  in  which  it  is 
found  and  through  which  it  moves,  fully  justify  the  general 
conclusion  Ave  have  stated  above,  and  have  led  to  its  general 
adoption  by  practical  operators.  For  this  reason,  an  oil  lease 
partakes  of  the  character  of  a  lease  for  general  tillage,  rather 
than  that  of  a  lease  for  mining  and  quarrying  the  solid  min- 
erals." " 

§43.     Plugging  wells. 

The  state  has  the  power  to  compel  the  o\vner  of  a  disused  or 
abandoned  well  to  plug  it,  so  gas  will  not  escape  into  the  open 

71  Wood  V.  N.  VV.  Ins.  Co.,  4G  N.  Y.  73  Wettengel  v.  Gormley,   160  Pa. 
421.  St.  559;   28  Atl.   Rep.  934;  40  Am. 

72  Mosley    v.    Vermont,    etc.,    Ins.  St.  Rep.  733. 
Co.,  55  Vt.   142. 


LEGAL    STATUS.  55 

jiir,  niul  tliereby  the  gas  not  only  be  wasted,  but  the  natural 
reservoirs  be  flooded  with  salt  water  to  the  destruction  of  the  gas 
and  the  jiractical  destruction  of  the  oil.^^ 

§44.     Not  subject  to  tariff  law  of  1890. 

Under  the  tariff  law  of  1890  natural  gas  imported  as  a  fuel 
is  not  subject  to  a  tariff  duty  under  that  clause  of  the  statute 
providing  that  all  imports  of  crude  bitimien  or  crude  mineral 
shall  be  admitted  free :  nor  is  it  dutiable  under  the  section  pro- 
viding that  all  raw  or  unmanufactured  material  not  enumerated 
shall  be  dutiable.'^ 

§45.     Entry  of  government  oil  lands. 

By  Acts  of  Congress  of  August  4,  1894,  and  of  February  11, 
1897,  oil  lands  can  be  entered  as  placer  mining  claims.^®  "  The 
premises  in  controversy  are  oil-bearing  lands,  the  government 
title  to  which,  under  existing  laws  can  alone  he  acquired  pursu- 
ant to  the  provisions  of  the  mining  laws  relating  to  placer 
claims."  '' 

§46.     Property  in  oil  in  tanks  or  pipelines. —  Larceny. 

The  presumption  is  that  the  person  delivering  oil  to  a  pipe- 
line company  is  the  o\^Tier  of  it ;  and  if  the  company  deny  his 

T 4  state  V.  Ohio  Oil  Co.,  1.50  Ind.  Act  of  1897,  see  29  Stat,  at  Large, 
21;  49  N.  E.  Rep.  10.55;  47  L.  R.  A.  526,  2  Siipp.  R.  S.  549. 
627;  Ohio  Oil  Co.  v.  Indiana.  177  U.  "Gird  v.  California  Oil  Co.,  60 
S.  lt)0;  20  Sup.  Ct.  Rep.  576;  State  Fed.  Rep.  531.  This  decision  was 
V.  Oak  Harbor  Gas  Co.,  53  Ohio  St.  rendered  before  the  two  Acts  re- 
347;  41  N.  E.  Rep.  584;  reversing  34  ferred  to  above  had  been  adopted. 
Wkly.  L.  Bull.  221 ;  18  Ohio  C.  Ct.  The  Land  Department  at  Washing- 
Rep.  751;  1  Toledo  Leg.  News,  474;  ton,  after  much  fluctuation,  had 
4  Ohio  C.  C.  158;  Given  v.  State  reached  the  same  conclusion.  Union 
(Ind.).  66  X.  E.  Rep.  750.  Oil  Co.,  on  review,  25  Land  Dec.  351. 

75  United   States   v.   BuiTalo,   etc..  See  In  re  Piru  Oil  Co.,  16  L.  D.  117; 

Co..  172  U.  S.  3.39;  19  Sup.  Ct.  Rep.  Roberts    vs.    Jepson,    4    L.    D.    60: 

200:  affirming  78  Fed.  Rep.  110;  45  Maxwell  v.  Brierly.  10  Copps  L.  D. 

U.  S.  App.  345:  24  C.  C.  A.  4.  50;  Ex  parte  Union  Oil  Co..  23  Land 

■  fi  See   Land   Office   Circular.   Oct.  Dec.    222;    In    re    A.    A.    Dewey.    9 

12,  1892,  15  Land  Dec.  760.  and  In-  Copps  L.  O.  .51 :  Dewey  v.  Rogers,  2 

structions.  23  Land  Dec.   322.     For  Land  Dec.  707 :  In  re  Rogers.  4  Land 

Dee.  284. 


56  OIL    AND    GAS. 

ownership,  it  has  the  hurdeii  of  proving  it.'^^  Oil  in  a  tank  may 
be  pledged ;  and  a  written  order  to  the  owner's  agent  in  charge 
of  the  oil  to  hold  it  to  the  order  of  the  pledgee  as  collateral  secur- 
ity for  a  named  snm  of  money  transfers  the  oil  to  the  pledgee 
on  the  agent's  acceptance  of  such  order.'''  Where  B,  the  owner 
of  several  hundred  barrels  of  oil  in  the  pipes  and  tanks  of  the 
Union  Pipe  Line  Company,  delivered  two  orders  on  the  com- 
pany for  the  oil,  which  he  had  accepted,  to  the  firm  of  H.  &  B. 
and  took  from  them  a  receipt  containing  an  agreement  by  them 
to  hold  the  oil  for  storage  at  five  cents  a  barrel  per  month,  the 
oil  at  the  time  being  in  The  tanks  or  pipe  lines  of  the  pipe-line 
company  and  undistinguishable  from  other  oil  in  them ;  and  H. 
&  B.  deposited  the  two  orders  to  the  credit  of  their  general  ac- 
count with  the  pipe-line  company,  and  afterwards  deposited  and 
drew  until  they  became  embarrassed,  and,  to  meet  their  obliga- 
tions, continued  to  draw"  on  their  balances  on  the  books  of  the 
pipe-line  company  until  they  failed,  it  was  held  that  they  were 
guilty  of  larceny  as  bailees,  on  failure  to  comply  with  the  de- 
mand of  B.  for  a  re-delivery  of  the  oil.  It  was  considered  that 
the  delivery  of  the  receipts  was  a  delivery  of  the  oil  and  consti- 
tuted a  bailment,  and  H.  &  B.  having  converted  the  oil  to  their 
own  use,  the  conversion  was  fraudulent,  and  they  were  guilty  of 
larceny.     The  court  said  : 

"  In  the  consideration  of  the  questions  involved  in  this  case, 
we  cannot  close  our  eyes  to  the  total  revolution  in  the  manner  of 
doing  business,  w^hich  has  been  brought  about  by  the  discovery 
of  petroleum  in  this  State.  It  has  developed  a  new  industry  of 
vast  importance.  Methods  for  conducting  it  have  been  devised 
and  put  in  operation,  which  were  wdiolly  unknown  when  the 
cases  I  have  cited  w^ere  decided.  Instead  of  oil  being  hauled  a 
long  distance  from  the  well  to  a  market  or  shipping  station,  and 
there  stored  in  barrels  or  in  tanks  in  a  merchant's  ware-rooms, 
'  it  is  now  turned  at  once  by  the  producer  into  the  pipes  of  the 
Pipe^Line  Company,  and  thence  conducted  to  the  line  of  the 
railroad  or  canal  for  shipment,  or  may  be  in  said  pipes,  or  lh  > 

78  Enterprise   Oil   and   Gas   Co.   v.  79  Fjrst   National    Bank   v.    Ilaik- 

National  Transit  Co.,  172  Pa.  St.  ness.  42  W.  Va.  156;  24  S.  E.  Kop. 
421;  33  Atl.  Rep.  687.  548;   32  L.  R.   A.  408. 


LEGAL    STATUS.  57 

tanks  connected  therewith.  Each  producer  knows  that  his  oil 
is  mixed  with  the  oil  of  other  producers.  Each  barrel  of  oil  in 
the  pipes  is  the  precise  counterpart  of  every  other  barrel  con- 
tained therein.  It  differs  neither  in  quantity,  quality  or  price. 
The  oil  is  sold  and  passes  from  hand  to  hand  upon  the  accepted 
orders  or  certificates  of  the  Pipe-Line  Company. 
Thousands  of  barrels  of  oil  are  sold  and  delivered  daily  in  the 
market  upon  similar  orders.  No  one  doubts  that  the  property 
passes ;  that  the  orders  drawn  to  them  are  the  constructive  pos- 
session, and  that  the  delivery  of  said  orders  is  a  symbolical  deliv- 
ery of  the  oil.  .  .  .  How  can  these  defendants  allege  with 
reason  that  as  to  them  there  was  no  delivery,  when,  in  point  of 
fact,  they  drew  the  oil  out  of  the  pipes  and  applied  it  to  the  pay- 
ment of  their  debts  ?  If  it  had  not  been  drawn  out,  it  would 
have  been  in  the  pipes  still  to  meet  the  demand  of  the  prosecutor. 
Even  if  delivery  of  the  orders  was  not  a  complete  delivery  of  the 
oil  at  that  time,  such  delivery  became  complete  when  the  defend- 
ants drew  it  out,  or  enabled  others  to  draw  it  out  by  a  transfer 
of  the  orders.  It  would  render  the  law  contemptible  in  the  eyes 
of  the  business  men,  were  it  to  say  that  there  was  no  delivery  of 
this  oil  when,  as  a  matter  of  fact,  there  was  a  delivery  for  all 
the  purposes  of  trade  and  commerce ;  such  a  delivery  as  enabled 
the  defendants  to  sell  it  and  apply  the  proceeds  to  the  payment 
of  their  debts."  And  further:  "  If  there  w^as  a  delivery  of 
the  oil,  of  which  we  have  no  doubt,  it  follows  necessarily  that 
there  was  a  bailment.  This  brings  us  to  the  further  question 
whether  the  defendants  fraudulently  converted  it  to  their  ovni 
use.  This  point  is  free  from  difficulty.  It  is  a  fraud  per  se 
for  a  bailee  to  convert  to  his  own  use  the  property  committed  to 
his  care.  The  conversion  is,  prima  facie,  evidence  of  the  fraud. 
Larceny  at  common  law  involves  something  more.  It  requires 
the  animus  furandi.  There  must  be  a  felonious  taking.  jSTot 
so  with  larceny  as  bailee.  It  requires  merely  a  fraudulent  con- 
version. ...  In  the  case  of  a  bailment,  therefore,  so  far 
as  the  intent  to  defraud  may  be  regarded  as  of  the  essence  of  the 
crime,  it  must  be  presumed  from  the  unlaAvful  conversion.  If 
I  deposit  my  pocketbook  for  safe  keeping  over  night  with  my 
landlord,  and  he  opens  it  and  converts  tlie  contents  to  his  own 


58  OIL    AND    GAS. 

use,  he  is  a  thief  both  in  law  and  in  morals.  Isor  does  it  matter 
that  he  parted  with  it  to  pay  his  debt  under  stress  of  an  execu- 
tion, with  the  intention  of  restoring  it  to  me  ultimately. 
But  it  is  said  that  the  defendants  were  bankers  in. oil,  and  th;it 
the  case  resembled  that  of  the  ordinary  banker  who  receives 
money  upon  deposit.  It  is  difficult  to  see  the  analogy.  By  the 
laws  and  the  usage  of  banking,  the  depositor  who  makes  a  gen- 
eral deposit  of  his  money  becomes  a  mere  creditor  of  the  banker. 
The  money  becomes  property  of  the  banker.  He  has  a  right  to 
use  it  in  his  legitimate  business.  He  may  loan  it  out  to  his 
customers  upon  such  security  and  upon  such  terms  as  are  usual 
with  bankers.  No  such  state  of  facts  exists  here.  The  defend- 
ants acquired  no  property  in  nor  right  to  use  the  prosecutor's 
oil.  .  .  .  They  had  no  right  to  lay  their  hands  upon  tlie 
property  of  the  prosecutor,  confided  to  them  for  safe  keeping,  in 
order  to  relieve  themselves."  *° 

80  Hutchison  v.  Com.,  82  Pa.  St.  472. 


CHAPTER  III. 

OIL  AND  GAS  LEASES. 

§47.  Peculiarity. 

§48.  Name  applied  to  instrument  does  not  determine  its  legal  effect. 

§49.  Lex  loci  governs. 

§50.  License  and  incorporeal  hereditaments. 

§51.  Interest  of  lessee  is  a  chattel  real. 

§52.  Contract  giving  interest  in  real  estate. 

§53.  Estate  does  not  vest  if  oil  or  gas  not  found. 

§54.  Vesting  title  subject  to  condition  precedent. —  Diligence. 

§55.  Tenancy  from  year  to  year  or  at  will. 

§56.  Unilateral  contract. 

§57.  Legal   interest  of  lessee  in  various  leases. —  Digest. 

§58.  Sale  of  oil  and  gas,  and  not  a   lease. 

§59.  Presumption  as  to  ownership  of  oil  or  gas  in  ground. 

§60.  Administrator's  right  to  lease  or  contract. —  Presumption. 

§61.  Lease  and  not  a  license. 

§62.  License. 

§63.  License. —  Consideration. —  Revocation. 

§64.  License,  revocation. 

§65.  Merger. 

§66.  Consideration. 

§67.  Option  to  purchase  after  development. 

§68.  Option  to  extend   lease. 

§69.  Acceptance  of  second  lease  by  lessee  in  first  lease. 

§70.  Extension  of  time  of  lease  may  amount  to  a  new  lease. 

§71.  Options. —  Revocation. 

§72.  Options  continued. 

§73.  Option  to  pay  rent  or  drill  well. 

§74.  Appurtenances,    what   will    pass   as   such. 

§75.  Statute  of  Frauds. 

§76.  Description  of  leased  premises. 

§77.  Right  of  lessor  to  use  surface. 

§78.  Construction. 

§70.       Contruction   of  instrument  by  ])arties. 

§80.  LInfilled  blanks. —  Written  and  printed  clauses. 

§81.  Execution  of  lease. 

§82.  Defective  execution  or  acknowledgment. 

§83.  Parol  change  of  written  lease. 

§84.  Acceptance. —  Estoppel. 

59 


60  on.    AND    GAS. 

§85.  Lessee  need  not  sign  lease. — Deed. 

§86.  Separate  owners  giving  joint  lease. 

§87.  Notice  to  one  of  several  lessees. 

§88.  Second  lease. —  Notice. 

§89.  Agent  of  lessee  may  take  lease  after  forfeiture. 

§90.  Exclusive  right  of  licensee  of  lessee. —  Solid  mineral  oil. 

§91.  Implied  covenant. 

§92.  Covenant  running  with  land. 

§93.  Personal    covenants. 

§94.  Assignment  of  contract  giving  interest  in  land. — Incorporeal  hered- 
itament.—  Lease. —  Surrender. 

§95.  Lessee  liable  after  assignment  on  express  covenants. 

§96.  When  work  must  be  begun. 

§97.  Diligence  in  operating  leased  premises  after  development. 

§98.  Agreement  as  to  what  constitutes  due  diligence. 

§99.  Unprofitable  lease. 

§100.  Lessor  cannot  impair  value  of  lease  by  drilling  wells  on  his  own 
land. 

§101.  Lessee  draining  premises  by  operations  on  adjoining  territory. 

§102.  Drilling  well  near  boundary  line. 

§103.  Injunction. —  Quieting  title. 

§104.  Damages. 

§105.  Damages  for  failure  to  keep  covenant. 

§106.  Damages  for  neglect  to  develop  or  operate  leased  premises. 

§107.  Damages  for  neglect  to  operate. —  Res  judicata. 

§108.  Damages  for  taking  oil  or  gas. 

§109.  Boundaries. —  Location  of  wells. 

§110.  Selection  of  site. 

§111.  Number  of  wells. 

§112.  Number  of  wells. —  Protecting  lines. 

§113.  Test  wells. —  Excuse  for  not  drilling. 

§114.  Test  well,  when  need  not  be  drilled. 

§115.  Test  well.— Depth. 

§116.  Lessor  and  lessee  by  mistake  locating  well  on  stranger's  land. 

§117.  "Shooting"  well. 

§118.  Oil  lease,  who  entitled  to  gas. 

§119.  Oil  lease  gives  no  right  to  gas  if  oil  be  not  found. 

§120.  Eviction. —  Ejectment. 

§121.  Failure  of  title,  reimbursement  of  operator. 

§122.  Lessee  denying  tenancy. 

§123.  Uncertainty  on  lease. —  Unconscionable. 

§124.  Diameter  of  wells. 

§125.  Contract  to  drill  wells  "  in  the  vicinity." 

§47.  Peculiarity. 

Gas  and  oil  leases  are  a  part  by  themselves.     There  is  scarcely 
any  comparison  between  them  and  the  ordinary  farm  or  house 


LEASES.  G 1 

lease ;  although  tliere  is  some  resemblance  in  them  to  coal  or 
solid  mineral  leases.  Usually  an  oil  or  gas  lease  is  for  a  term 
of  a  certain  number  of  years,  upon  a  nominal  consideration, 
sometimes  with  the  privilege  of  an  extension  of  the  term  at  the 
option  of  the  lessee,  or  as  long  as  gas  or  oil  is  found  in  paying 
quantities ;  contains  a  description  of  the  leased  territory,  and  a 
reserv^ation  of  a  certain  number  of  acres  around  the  buildings, 
when  any  are  on  the  leased  premises,  where  no  wells  shall  be 
drilled ;  if  the  boundaries  of  the  reservation  are  not  fixed,  pro- 
vides that  they  shall  be  fixed  by  one  of  the  parties,  usually  the 
owner  of  the  land ;  provides  for  a  part  of  the  oil  produced  as  a 
royalty  or  consideration  for  the  lease,  except  for  operating  pur- 
poses., delivered  in  tanks  or  pipe  lines  to  the  ci"edit  of  the  lessor ; 
provides,  in  ease  only  gas  should  be  discovered,  for  the  payment 
of  a  certain  sum  periodically,  for  each  well,  if  the  gas  be  found  in 
a  quantity  to  justify  transporting  it  off  the  premises  to  a  market, 
of  which  fact:  the  lessee  is  sometimes  made  the  exclusive  judge ; 
the  growing  crops  and  the  fences,  not  to  be  unnecessarily  dist- 
turbed;  gives  the  lessee  or  grantee  the  right  to  enter  on  the 
premises  at  any  time  to  drill  wells,  and  a  right  of  way  to  and 
from  the  wells,  the  right  to  lay  pipe  lines  to  carry  off  the  gas 
and  oil,  the  right  to  remove  all  fixtures  used  in  the  drilling  and 
operation  of  the  wells,  at  the  termination  of  the  lease  or  grant ; 
the  lessee  agreeing  to  commence  a  well  within  a  certain  time, 
and  in  case  of  a  failure  to  do  so  to  pay  for  any  future  delay  a 
certain  sum  periodically  (frequently  so  much  per  acre  of  the 
entire  tract)  as  a  rental  until  a  well  is  commenced  or  the  prem- 
ises abandoned,  the  amount  thus  paid  not  infrequently  made 
a  full  consideration  and  payment  for  tlie  yearly  delay  until  a 
well  shall  be  commenced ;  and  provides  that  a  failure  to  com- 
mence a  well  or  to  make  the  payments  within  the  specified  time 
shall  render  the  lease  void.  We  say  these  are  the  usual  terms. 
There  are  often  many  others :  such  as  a  thirty  days'  notice  on  the 
part  of  the  lessee  or  grantee  of  his  determination  to  terminate  or 
surrender  the  lease ;  or  that  a  second  or  other  wells  shall  be 
drilled  within  a  specified  time  after  the  first  well  is  drilled,  and 
if  not,  the  lease  to  be  void  or  forfeited ;  or  that  the  lessor  or 
grantor  is  to  receive  so  much  gas  free  of  charge,  giving  the  lessee 


C2  OIL    AND    GAS. 

the  exclusive  right  to  develop  the  lands,  and  the  like.  The- 
number  of  conditions  are  many,  as  will  appear  further  on  in. 
this  chapter,  and  which  it  is  unnecessary  here  to  further  enu- 
merate them.^ 

§48.     Name  applied  to  instrument  does  not  determine  its  legal 
effect. 

In  determining  the  scope  and  legal  effect  of  an  instrument 
giving  rights  and  privileges  to  mine  or  take  mineral,  oil  or  gas, 
it  is  immaterial  by  what  name  it  is  called,  whether  a  ""  lease," 
"  contract,"  "  grant,"*  or  "  deed  of  conveyance,"  the  courts  will 
look  to  the  language  used  in  the  instrument,  aside  from  these 
terms  so  used,  and  determine  its  legal  effect.  The  most  com- 
monly used  term  is  the  word  "  lease,"  and  yet  many  such  an  in- 
strument has  been  considered  as  giving  an  estate  of  inheritance, 
which  in  fact  made  it  a  deed  of  conveyance.^ 

§49.     Lex  loci  governs. 

The  rights  of  the  parties  must  be  determined  by  the  law  of 
the  State  where  the  leased  premises  lie,  although  it  be  executed 
in  another  State  where  the  lessor  and  lessee  reside.^ 

§50.     License  and  incorporeal  hereditaments. 

If  one  grant  in  writing  a  privilege  to  mine  in  his  lands,  he 
creates  an  incorporeal  hereditament ;  if  he  grant  by  parol  the 

iSee  Simpson  v.  Pittsburgh,  etc.,  144  Pa.  St.  613;   23  Atl.  Rep.  250; 

Co.,  28  Ind.  App.  343;  62  N.  E.  Rep.  Pluramer  v.  Hillside,  etc.,  Co.,    160 

753.  Pa.     St.    483;     28    Atl.    Rep.     853; 

2  Hobart  v.  Murray,  54  Mo.  App.  Moore  v.  Miller,  8  Pa.  St.  272 ;  Gary 

249;  Suffern  v.  Butler,  21  N.  J.  Eq.  Hardware  Co.  v.  MeCarty,  10  Colo. 

410.  affirming  4  C.  E.  Gr.    (N.  J.),  App.  200;  50  Pac.  Rep.  744;  Lambie 

202;    Genet   v.   Delaware,   etc.,    Co.,  v.  Sloss,  etc..  Co.,  118  Ala.  427;  24 

136  N.  Y.  593;  32  N.  E.  Rep.  1078.  So.   Rep.   108;   Hodgson  v.   Perkins, 

reversing  122  N.  Y.  505;   25  N.  E.  84  Va.  706;  5  S.  E.  Rep.  710;  Shen- 

Rep.    956;    Sanderson    v.    Scranton,  andoah   Land,   etc.,   Co.  v.   Hise,   92 

105  Pa.  St.  469;  Delaware,  etc.,  Co.  W.  Va.  238;  28  S.  E.  Rep.  303. 

V.     Sanderson,     109     Pa.     St.     .583;  3  Oenet  v.  Delaware,  etc..  Co.,   35 

Hope's  Appeal,  29  W.  N.  C.    (Pa.)  N.  Y.  Supp.  147;  13  N.  Y.  Misc.  Rep- 

365;   Kingsley  v.  Hillside,  etc.,  Co.,  400. 


LEASES.  63 

■same  privilege,  he  simply  constitutes  a  license.  A  license  is  a 
mere  personal  privilege,  while  an  incorporeal  hereditament  is 
an  interest  in  lands.  This  distinction  is  not  always  observed, 
and,  when  not,  confusion  arises.  A  license  may,  however,  be 
reduced  to  writing,  or  created  in  writing  by  the  use  of  apt  words. 
When  privileges  are  granted  by  a  writing,  the  writing  alone  dr 
termines  the.  character  or  legal  nature  of  the  privilege  granted. 

,§51.     Interest  of  lessee  is  a  chattel  real. 

\\'hatever  rights  an  operator  receives,  unless  he  operates  under 
a  parol  license,  he  receives  by  virtue  of  the  written  instrument 
under  which  he  operates,  and  to  that  instrument  we  must  look 
to  determine  what  legal  interest  he  has  in  the  premises.  But 
restricting  ourselves  to  a  lease,  as  such  purely,  the  question 
arises  ''  What  interest  has  the  lessee  in  the  leased  premises  ?" 
In  the  case  of  an  agricultural  lease,  or  the  lease  of  a  house  or 
building,  for  a  term  of  years,  the  interest  of  the  lessee  is  easily 
defined  by  means  of  the  decisions  of  courts  running  back  many 
hundreds  of  years.  But  in  the  case  of  an  oil  or  gas  lease,  where 
the  length  of  the  tenn  is  contingent  on  the  discovery  of  gas  or 
oil  in  paying  quantities,  and  on  its  continuance  in  such  quanti- 
ties, although  limited  to  a  specified  numl>er  of  years,  with  a 
right  to  take  and  carry  away  a  part  of  the  soil  itself,  a  very 
different  question  is  piresented.  The  interest  of  a  lessee  under 
such  a  lease  has  been  termed  a  chattel  real,  and  not  a  partnership 
asset.^  "  The  contract  referred  to  was  a  lease  of  the  lands  for  a 
specified  term,"  said  the  Supreme  Court  of  Pennsylvania,  ''  and 

4  See  Nego  v.  Barber,  etc.,  Co.,  17  402;  Lee  v.  Bumgardner.  86  Va.  315; 

Mo.   App.   294;    East  Jersey  Co.   v.  10  S.  E.  Rep.  .3;  Gillett  v.  Treganza. 

Wright,  32  N.  J.  Eq.  248.  6  Wis.  343 ;  Shepherd  v.  McCalmont 

Oil  taken  out  under  a  license  is  Oil  Co.,  38  Hun  37 ;  Tipping  v.  Rob- 

the  property  of  the  licensee.   Spring-  bins,   71   Wis.   507;    37   N.   W.   Rep. 

field  Foundry,  etc.,  Co.  v.  Cole,  130  427. 

IMo.    1;    31    S.    W.    Rep.    922;    East  Merely  designating  the  instrument 

Jersey  Co.  v.  Wright,  supra;  Grubb  as    a    lease    does    not    make    it    so. 

V.  Bayard,  2  Wall  Jr.  81;   Clement  Jennings  Bros.  &  Co.  v.  Beale,   158 

V.   Youngman.   40   Pa.    St.    .341;    Al-  Pa.  St.  283;  27  Atl.  Rep.  948. 

gonquin  Coal  Co.  v.  Northern,  etc,  s  Chamberlain  v.  Dow,  16  W.  N.  C. 

-Co..   162  Pa.   St.    114;    28  Atl.   Rep.  (Pa.)    532. 


64:  Oil,    AND    GAS. 

for  a  particular  purpose,  at  a  fixed  rent  or  royalty  reserved  out 
of  the  production.  As  to  the  legal  force  and  effect  of  the  writ- 
ing there  can,  we  think,  be  no  doubt :  it  conveyed  an  interest  in 
the  land ;  in  this  respect  it  is  distinguished  from  a  license." 
"  But  although  the  writing  is  a  lease,  it  conveyed  an  interest  in 
the  land  —  a  chattel  interest,  however ;  the  lease  was  a  chattel 
real,  but  none  the  less  a  chattel."  "  Such  an  interest  may  be 
sold  on  execution,  the  purchaser  being  regarded  as  an  assignee.^ 
If  the  lessee  mortgage  his  interest,  the  mortgage  must  be  execu- 
ted in  accordance  with  the  law  relating  to  a  chattel  mortgage.^ 

§52.     Contract  giving  interest  in  real  estate. 

A.  contract  concerning  oil  or  gas  lands  may  be  so  drawn  as  to 
give  an  interest  in  the  premises  granted,  that  can  only  be  con- 
veyed or  assigned  in  writing.  This  w^as  held  to  be  true  of  a 
grant  of  "  all  the  oil  and  gas  in  and  under  "  a  certain  tract  of 
eighty  acres  of  land,  with  the  right  to  enter  thereon  at  all  times 
for  the  purpose  of  drilling  and  operating  for  oil  or  gas,  to  erect 
structures  and  lay  pipes,  and  excepting  and  reserving  a  certain 
part  of  the  oil  produced  and  saved  from  the  premises.  If  gas 
were  found,  certain  annual  rental  for  each  well  while  the  gas 
was  used  off  the  premises  was  to  be  paid,  and  the  grantor  was  to 
have  free  gas  for  his  dwelling  houses  and  for  domestic  purposes. 
There  were  other  provisions  with  respect  to  forfeiture,  if  wells 
were  not  sunk  within  a  certain  time.  The  conditions  between 
the  parties  were  expressly  extended  "  to  their  heirs,  executors 
and  assigTis."  The  o\\mer  of  the  land  had  the  right  to  cultivate 
the  soil.  The  grant  was  unlimited  in  time.  "  The  contract  is 
not  the  form  of  a  lease  of  the  land,"  said  the  court,  "  or  any  part 
of  it,  for  years  or  for  life  or  in  per]3etuity,  with  an  accompany- 
ing right,  as  an  incident  of  the  letting,  of  taking  the  oil  and  gas 

"Brown   v.    Beecher.    120   Pa.    St.  274;    First  Nat.   Bank   v.   Dow,   41 

500;  15  Atl.  Rep.  608;  McElwaine's  Hun  13. 

Appeal   (Pa.),  11  Atl.  Rep.  453.   See  ^  Aderhold  v.  Oil  Well  Supply  Co., 

Oliio  Oil  Co.  V.  Kelley,  9  Ohio  C.  Ct.  158  Pa.  St.  401 ;  28  Atl.  Rep.  22. 

Rep.  511;   6  Ohio  Cir.  Dec.  470;  40  8  Devine   v.    Taylor,    1    Ohio   Dec. 

L.    Bull.    338;     3    Ohio    Deo.     186;  (N.  P.)    153;   12  Ohio  C.  C.  723;  4 

GreensburjT  Fuel  Co.  v.  Irwin,  etc.,  Ohio   C.   Dec.   248.     See  Willetts  v. 

Co.,    162   Pa.   St.   78;    29   Atl.   Rep.  Brown,  42  Hun  140. 


LEASES. 


65 


beneath  the  surface."  In  discussing  the  nature  of  this  contract, 
the  court  used  the  following  language:  '*  While  for  reasons  we 
have  sought  to  state,  we  do  not  regard  the  contract  in  suit  as  a 
grant  of  land,  or  as  a  lease  properly  so-called,  but  do  regard  it 
as  a  grant  of  a  right  in  the  nature  of  an  incorporeal  heredita- 
ment, operative  from  the  time  of  its  execution  and  during  the 
accomplishment  of  its  purpose  as  a  transfer  of  an  exclusive  right 
to  search  for,  take  and  appropriate  the  minerals  mentioned  in 
the  instrument,  under  whatever  technical  common  law  term  it 
may  most  properly  be  classed,  it  must  be  held  to  be  a  conveyance 
of  an  interest  in  land  within  the  meaning  of  our  statutes."  In 
discussing  the  nature  of  the  grant,  or  contract,  the  court  used 
the  following  language : 

"  The  grant  is  not  limited  to  any  period  of  time,  though  as  in 
the  case  of  a  grant  of  the  coal  in  certain  land,  it  would  cease  to 
be  operative  whenever  it  should  be  foimd  that  no  oil  or  gas  was 
beneath  the  soil,  or  none  that  could  be  taken  with  benefit ;  where- 
as a  lease  of  land,  properly  so-called  would  continue  in  force 
according  to  its  provisions  until  the  end  of  the  term.  The  con- 
tract is  in  effect  a  grant  of  the  right  to  take  all  the  oil  and  gas 
that  may  be  found  and  taken  by  making  wells  as  prescribed 
upon  the  particular  tract  of  land,  with  accompanying  incidental 
rights  to  do,  as  indicated  in  the  contract,  upon  the  surface,  those 
things  needed  for  the  enjoyment  of  the  principal  right  so  to  take 
oil  and  gas.  It  confers  rights  not  limited  as  to  time,  unless  it 
be  as  to  the  indefinite  period  within  which  oil  or  gas  may  be 
taken  advantageously  under  the  conditions  prescribed.  The 
right  to  take  all  the  oil  and  gas  in  and  under  the  land  is  in  its 
nature  an  exclusive  right.  It  is  inconsistent  wntli  a  right  in  the 
grantor  or  others  under  him  to  take  any  of  the  oil  or  gas  from 
beneath  the  designated  land,  at  least  through  wells  drilled  upon 
that  land.  The  oil  and  gas  in  their  free  and  natural  state 
within  the  land  constitute  a  part  of  it,  though  they  be  fluent  and 
liable  to  depart  to  other  land,  there  to  be  taken  into  possession 
through  wells  made  for  such  purpose.  The  right  to  take  such 
minerals  from  the  land  constitutes  an  interest  in  the  land.  The 
instniment  under  consideration  does  not  create  a  mere  personal 
privilege  to  take   the  minerals   from   the   land.      It   is   an  ex- 


■66  OIL    AND    GAS. 

elusive  and  assignnhle  interest  in  land.  If  with  propriety 
it  can  be  called  a  license,  it  must  be  a  license  coupled  with  an 
interest  in  land.  By  its  terms  the  contract  is  a  grant  of  the 
minerals  in  and  under  the  land.  Jf  by  such  general  terms  all 
of  the  specified  solid  mineral,  as  coal,  in  and  under  the  lard 
were  granted,  it  would  be  a  grant  of  real  estate ;  but  because  of 
the  fluidity  and  fugitiveness  of  petroleum  and  natural  gas  the 
absolute  ownership  of  these  mineral  substances  within  the  land 
cannot  be  acquired  without  reducing  them  to  actual  control ;  so 
that  a  distinction  must  be  and  is  made  between  these  elusive 
minerals  in  and  under  the  ground  and  the  solid  minerals  in 
place  in  the  earth.  Therefore,  a  grant  of  all  the  oil  and  gas  in 
and  under  a  tract  of  land  is  not  a  grant  of  any  particular  specific 
substance  as  would  be  a  grant  of  the  coal  in  and  under  certain 
land.  The  owner  of  land  is  not  by  virtue  of  his  proprietorship 
thereof  the  absolute  o^^^ler  of  the  oil  and  gas  in  and  under  it, 
in  its  free  and  natural  state,  not  yet  reduced  to  actmil  control  of 
any  person,  but  he,  togetlier  with  the  other  owaiers  of  land  in  the 
gas  field,  has  a  qualified  o\vnership,  consisting  of  or  amounting 
to  his  exclusive  right  to  do  what  may  be  done  on,  through  and 
under  his  land  (as  making  of  wells)  necessary  to  reduce  the 
minerals  to  his  possession,  and  by  thus  acquiring  the  exclusive 
control  to  become  the  owner  of  the  mineral  substances  as  his 
personal  property,  observing  due  regard  in  his  operations  to  the 
like  enjoyment  of  such  exclusive  right  by  all  other  land  owners 
in  like  circumstances.  This  exclusive  right  is  his  private 
pri)|)c.rty.  lie  cannot  grant  more  than  he  owns ;  therefore,  by 
granting  all  the  oil  and  gas  in  and  imder  his  land,  he  does  not 
grant  more  than  a  right  to  reduce  to  ownership  the  oil  and  gas 
which  may  be  obtained  by  operating  on  the  land,  whereby  sub- 
stances which  at  the  time  of  the  making  of  the  grant  may  bo  in 
and  under  lands  of  other  surface  properties  may  come  into  right- 
ful ownership  of  the  grantee  as  liis  personal  property.  Though, 
liecause  of  the  peculiar  nature  of  oil  and  gas,  a  corporeal  interest 
in  them  in  place  cannot  be  created,  and  title  to  the  specific"  min- 
eral substances  enn  not  be  acquired  without  the  reduction  of 
them  first  to  personal  property,  yet  the  exclusive  and  assiuiinbh' 
right  to  do  this  with  the  accompanying  rights  necessars^  to  such 


LEASES.  67 

aceoniplislimeiit,  constitutes,  not  a  privilege  revocable  before  it 
has  been  acted  upon,  but  a  subsisting,  exclusive,  assignable  and 
in*evocablc  right  which  accrues  upon  the  execution  of  the  ^vritten 
instrument  of  conveyance  and  before  any  action  has  been  taken 
thereunder.  The  right  so  created  is  not  susceptible  of  livery 
of  seizin,  and  is  in  the  nature  of  an  incorporeal  hereditament. 
The  contract  before  us  cannot  be  regarded  as  a  lease  of  land 
for  three  years  or  less,  or  as  a  lease  of  land  ineffectual  because 
of  uncertainty  or  indefiniteness  of  duration  of  term ;  and  occu- 
pancy thereunder  cannot  be  regarded  as  a  tenancy  from  year 
to  year ;  but  the  interest  granted  is  properly  to  he  considered  as 
an  interest  in  land  Avithin  the  meaning  of  our  statutes."  ^ 

§53.     Estate  does  not  vest  if  oil  or  gas  not  found. 

There  is  an  implied  condition  in  every  lease  given  for  oil  or 
gas  mining  purpose's  that  if  oil  or  gas  be  not  found  in  such  quan- 
tities as  will  justify  its  operation,  within  the  time  stipulated,  or 
within  a  reasonable  time  where  no  time  is  specified,  no  estate 
shall  pass  by  it  and  vest  in  the  lessee.  Contrasting  an  oil  lease 
with  a  coal  lease,  the  Supreme  Court  of  Pennsylvania  said : 
"  A  vested  title  cannot  ordinarily  be  lost  by  abandonment  in  a 
less  time  than  that  fixed  by  the  statute  of  limitations,  unless 
there  is  satisfactory  proof  of  an  intention  to  abandon.  An  oil 
lease  stands  on  quite  different  ground.  The  title  is  inchoate 
and  for  purposes  of  exploration  only,  until  oil  is  found.  If  it 
is  not  found,  no  estate  vests  in  the  lessee,  and  his  title,  whatever 
it  is,  ends  when  the  unsuccessful  search  is  abandoned.  If  oil  is 
found,  then  the  right  to  produce  becomes  a  vested  right,  and  the 

9  Heller  v.  Dailey,  28  Ind.  App.  An  instrument  concerning  coaf 
555;  63  N.  E.  Rep.  490.  See  Gad-  lands,  sotting  forth  that  the  owner 
bury  V.  Ohio,  etc.,  Gas  Co.  (Ind.),  does  "grant,  bargain  and  sell"  the 
67  N.  E.  Rep.  259.  coal  beneath  the  surface,  and  add- 
Under  a  statute  providing  that  ing  words  of  inheritance,  presump- 
*'  land  "  and  "  real  estate  "  of  a  city  tively,  a  contrary  intent  not  being 
"  include  rights  and  easements  of  affirmatively  shown.  shoAVS  that  the 
an  incorporeal  nature,"  an  oil  lease  owner  intended  to  vest  in  the 
OAvned  by  a  city  is  real  estate.  Ker-  grantee  the  entire  ownership  of  the 
lin  Bros.  Co.  v.  Toledo.  20  Ohio  C.  coal  in  the  land  described.  Hosatk 
Ct.  Rep.  603;  8  Ohio  N.  P.  62.  v.  Crill    (Pa.),  53  Atl.  Rep.  641. 


68  OIL    AND    GAS. 

lessee  will  be  protected  in  exercising  it  in  accordance  with  the 
terms  and  conditions  of  his  contract."  "  He  [the  lessee]  conld 
abandon  whenever  he  was  satisfied,  from  the  search  made,  that 
the  fnrther  expenditure  of  time  and  money  upon  any  given 
farm,  or  upon  the  body  of  farms  covered  by  his  leases,  would  be 
fruitless.  Whenever  he  did  so  abandon  a  given  farm,  or  the 
whole  body  of  leased  farms  to  which  his  contract  referred,  his 
rights  therein  were  at  an  end."  ^**  In  a  nisi  prius  court,  of  that 
State,  the  following  language  Avas  used  with  reference  to  an  oil 
lease  executed  as  early  as  1864:  "  The  contract  is  peculiar  and 
one  of  those  instruments  to  which  the  development  of  the  oil  bus- 
iness has  given  rise.  It  is  not  a  grant  of  land,  or  a  present 
leasehold  interest  therein.  It  is  not  a  grant  of  the  mineral,  etc., 
in  place  or  under  the  land,  but  the  right  to  search  for  oil,  etc., 
and  the  right  to  enter  and  occupy  for  the  purpose  of  such  search 
and  no  other.  If  the  search  is  fruitless,  it  is  at  the  cost  of  the 
explorer.  When  the  search  is  abandoned,  the  right  of  entry  is 
gone.  But,  if  the  search  is  successful,  then  the  explorer  be- 
comes a  tenant  for  the  purpose  of  operating  the  land  at  the  rent 
agreed,  and  his  right  of  possession  exists,  not  for  the  purpose  of 
search,  but  for  the  purpose  of  operating  the  oil  or  minerals 
Avhich  his  search  has  discovered.  Whether  the  tenancy  exists 
depends,  therefore,  on  whether  the  oil  which  is  its  object  is 
found  to  exist  upon  the  land."  ^^     If  the  lessee  has  the  right  to 

1"  Venture  Oil   Co.  v.  Fretts,   152       All.    Rep.    1035;    Kenton   Gas,    etc., 

Co.  V.  Dorney,  17  Ohio  Cir.  Ct.  Rep. 
101 ;  9  Ohio  Cir.  Dec.  604;  Eaton  v. 
Allegany  Gas  Co.,  122  N.  Y.  416; 
25  N.  E.  Rep.  981,  reversing  42  Hun 
61;  Hug-gins  v.  Daley,  99  Fed.  Rep. 
606;    40  C.   C.   A.    12;    48   L.   R.   A. 


Pa.  St.  451;  25  Atl.  Rep.  732;  Steel 
smith  V.  Gartlan,  45  W.  Va.  27 
29  S.  E.  Rep.  978;  44  L.  R.  A.  107 
Huggins  V.  Daley,  99  Fed.  Rep.  606 
40  C.  C.  A.  12;  48  L.  R.  A.  320 
Gadbury  \.  Ohio,  etc..  Gas  Co 
(Ind.),  67  N.  E.  Rep.  259.  320;  Petroleum  Co.  v.  Coal,  etc.,  Co., 

iiMcNish  V.  Stone,  reported  in  89  Tenn.  381;  18  S.  W.  Rep.  65; 
note  to  1.52  Pa.  St.  457;  23  Pittsb.  Muhlenberg  v.  Henning,  116  Pa.  St. 
L.  J.  (N.  S.)  232.  Ruling  followed  138;  9  Atl.  Rep.  144;  Cleminger  v. 
in  Crawford  v.  Ritchie,  43  W.  Va.  Baden  Gas  Co.,  159  Pa.  St.  16;  33 
252;  27  S.  E.  Rep.  220;  Elk  Fork  W.  N.  C.  480;  28  Atl.  Rep.  293; 
Oil  and  Gas  Co.  v.  Jennings,  84  Fed.  Miller  v.  Balfour,  138  Pa.  St.  183; 
Rep.  839;  May  v.  Hazlewood  Oil  Co.,  22  Atl.  Rep.  86;  Foster  v.  Elk  Fork, 
1.52  Pa.  St.  518;  25  Atl.  Rep.  .564;  etc.,  Co..  90  Fed.  Rep.  178;  61  U.  S. 
Stage  V.  Boyer,  183  Pa.  St.  560;  38       App.  576;  32  C.  C.  A.  560. 


LEASES.  00 

abandon  the  lease  after  operations  begun,  and  remove  all  his 
property  from  the  premises,  and  he  abandon  such  operations, 
the  lease  is  at  an  end/^ 

§54.     Vesting  title  subject  to  condition  precedent. —  Diligence. 

*■'  While  most  of  the  eases  ^^  have  gone  upon  the  ground  of 
abandonment,  the  governing  principle  in  all  oil  leases  of  the 
cliaracter  under  consideration  is  that  the  discovery  and  produc- 
tion of  oil  is  a  condition  precedent  to  the  continuance  or  vesting 
of  any  estate  in  the  demised  premises ;  that  such  leases  vest  no 
present  title  in  the  lessee,  and  if,  at  any  time,  tlie  lessee  has  the 
option  to  suspend  operations,  the  lease  is  no  longer  binding  on 
the  lessor  because  of  want  of  mutuality ;  and,  where  the  only 
consideration  is  prospective  royalty  to  come  from  exploration 
and  development,  failure  to  explore  and  develop  renders  the 
agreement  a  mere  nudum  pactum,  and  works  a  forfeiture  of  the 
lease,  for  it  is  of  the  very  essence  of  the  contract  that  work 
should  be  done.  And,  the  smaller  the  tract  of  land,  the  more 
imperative  is  the  need  for  prompt  and  efficient  drilling;  for  oil 
operations  cumber  the  land,  rendering  it  unavailable  for  agri- 
cultural purposes.  The  land  owner  is  entitled  to  his  royalty  as 
jiromptly  as  it  can  be  had.  The  danger  of  damage  from  his 
small  holding  is  increased  by  delay,  and  the  resulting  damage, 
not  being  susceptible  of  pecuniary  measurement,  is  therefore  not 
compensable.  Xo  such  lease  should  be  so  construed  as  to  enable 
the  lessee  who  has  paid  no  consideration  to  hold  it  merely  for 
speculative  purposes,  without  doing  what  he  stipulated  to  do, 
and  what  was  clearly  in  the  contemplation  of  the  lessor  when 
he  entered  into  the  agreement."  ^* 

12  Paine  v.  Grifliths,  86  Fed.  Rep.  finding   of   either   one.     In  re  Bru- 

452;   .58  U.  S.  App.  38;   .30  C.  C.  A.  not's  Estate,  29  Pittsb.  L.  J.  (N.  S.) 

182.  105.     See  Gadbury  v.  Ohio,  etc..  Gas 

An    agreement    which    "granted"  Co.    (Ind.),  67  N.  E.  Rep.  250. 

an    exclusive    right   to   drill    for   oil  i3  Alluding  to  the  cases  previously 

and  gas  in  a  certain  tract,  and  take  cited  in  the  opinion, 

them  out  for  twenty  years,  was  held  i4  Huggins  v.  Daley,  09  Fed.  Rep. 

to  amount  to  a  sale,  conditioned  in  606;   40  C.   C.  A.   12;   48  L.   R.   A. 

the  lirst  instance  on  the  existence  of  320.     Citing    Twin-Lick    Oil    Co.    v 

oil  or  gas,  but  made  absolute  by  the  INIarbury,  91  U.  S.  593 ;  Guffy  v.  Hu- 


70  OIL    AND    GAS. 

§55.     Tenancy  from  year  to  year  or  at  will. 

A  gas  lease  may  be  so  drawn  as  to  create  a  tenancy  from  year 
to  year.  Such  an  instance  arose  in  Indiana.  A  statute  of  that 
State  provided  "  that  tenancy  at  will  cannot  arise  or  be  created 
without  an  express  contract,  and  all  general  tenancies,  in  which 
the  premises  are  occupied  by  consent,  either  express  or  implied, 
of  the  landlord,  shall  be  deemed  tenancies  from  year  to  year."^'^ 
An  oil  and  gas  lease  provided  that  it  should  begin  the  day  it  w^as 
executed,  and  terminate  when  gas  ceased  to  be  used  generally 
for  manufacturing  purposes  in  a  certain  to^vn,  or  on  failure  to 
pay  or  tender  the  rent  agreed  upon  within  sixty  days  after  duo. 
As  a  part  of  the  consideration  the  lessee  agreed  to  pay  one  hun- 
dred dollars  per  annum  for  each  gas  well  drilled  and  producing 
gas  in  paying  quantities  —  payments  to  begin  and  to  become  due 
as  to  each  well  on  its  completion,  and  to  continue  thereafter  an- 
nually during  the  term  of  the  lease.  If  tlie  lessee  failed  to  drill 
a  gas  well,  he  was  to  pay  fifty  cents  an  acre;  and  if  wells  were 
not  drilled  within  five  3^ears,  tJien  the  rent  was  to  be  raised  to 
one  dollar  an  acre.  If  any  otlier  gas  well  was  put  douai  on  the 
leased  premises  other  tlian  those  stipulated  for,  then  the  lessee 
was  to  be  released  from  the  payment  of  the  rent.  As  there  was 
no  definite  time  fixed  for  the  running  of  the  lease,  it  was  held  to 
be  a  tenancy  from  year  to  year,  within  the  provision  of  the 
statute  quoted;  and  hence  was  terminable  at  the  end  of  any 
year.^"  A  sale  of  all  the  minerals  under  a  tract  of  land,  with 
the  usual  mining  rights  and  privileges,  giving  a  right  to  enter 
at  any  time  with  workmen  and  machinery,  and  mine  and  carry 
away  coal ;  giving  the  right  to  use  so  much  of  the  surface  as 
might  be  necessary  for  the  operations,  to  erect  the  necessary 

kill,   34  W.  Va.   49;    11   S.   E.   Rep.  Co.    (W.  Va.),   44   S.   E.    Hep.   433; 

754;  8  L.  R.  A.  759^  and  Rorer  Iron  Monfoit  v.  Lanyon  Zinc  Co.   (Kan.) 

Co.  V.  Trout,   83  Va.   397;   2   S.   E.  72  Pac.  Rep.  784. 
Rep.  713;   Conrad  v.  Moorehead.  89  is  Burns'  Rev.  1901,  Sec.  7089. 

N.  C.  31 ;  Maxwell  v.  Todd,  112  N.  C.  le  Diamond    Plate    Glass    Co.    v. 

677;   16  S.  E.  926;   Hawkins  v.  Pep-  Echelbarger.    24   Ind.   App.    124;    .55 

per.   117   N.   C.  407;    23   S.   E.   489;  N.     E.    Rep.     233;     Diamond     Plate 

Cadbury     v.     Ohio,     etc..     Gas     Co.  Glass  Co.  v.   Curless.   22   ind.   App. 

(Ind.).    67    N.    E.    Hep.    259;    Low-  346;  52  N.  E.  Hep.  782. 
ther    Oil     Co.    v.    Miller-Sibley    Oil 


LEASES.  71 

buildings,  to  constnict  roads,  and  to  use  water  ;  the  <^nsideration 
U)  he  a  payment  quarterly  of  15  cents  per  ton  for  all  iron  ore  so 
taken ;  with  the  privilege  to  remove  tlie  machinery  and  fixtures 
at  any  time,  was  held  to  create  a  tenancy  at  will."  \\T:iere  a 
lessee  had  the  right  to  surrender  the  lease,  after  which  all  his 
liabilities  under  it  should  cease,  it  was  held  that  this  provision, 
taken  in  connection  witli  the  gi'anting  clause,  which  stated  no 
time  to  run,  and  the  hahendum  clause,  giving  the  lessee  two 
years  in  which  to  drill  for  oil,  did  not  create  an  estate  at  will.^^ 
A  grant  of  oil  privilege,  without  limitation  as  to  time,  in  consid- 
eration of  one  dollar,  contained  this  clause :  "  In  case  no  well 
is  completed  within  two  years  from  this  date,  then  this  grant 
shall  immediately  become  null  and  void  as  to  both  parties ;  pro- 
vided, tliat  the  second  party  may  prevent  such  forfeiture  from 
year  to  year  by  paying  to  the  first  party  annually  in  advance 
eighteen  dollars,  at  her  residence  until  such  well  is  completed." 
It  was  held  that  by  this  clause  the  grant  was  converted  into  a 
lease  from  year  to  year,  at  the  option  of  tlie  lessee,  until  a  well 
was  completed ;  and  that  it  would  then  continue  so  long  as  oil 
was  produced  in  paying  quantities. ^'^ 

§56.     Unilateral  contract. 

In  Texas  many  of  the  so-called  gas  leases  are  regarded  as 
unilaterial  contracts.  Thus,  when  tlie  consideration  for  a  so- 
called  lease  was  only  one  dollar  and  a  promise  to  develop  tlie 
premises  and  deliver  to  the  lessee  a  stated  per  cent,  of  the  oil 
jiraduced ;  and  it  was  stipulated  that  the  lessee  might  terminate 
the  lease  at  any  time,  and  that  the  sum  paid  should  be  the 
lessor's  full  compensation,  it  was  held  that  the  contract  was 
unilateral  and  void ;  that  a  sale  of  the  premises  before  opera- 
tions began  terminated  the  lease,  and  that  it  was  uot  a  cloud  on 
the  title  of  such  premises."*^ 

17  Cowan  V.  Radford  Iron  Co.,  83  '  Va.)    43    S.    E.    Rep.    101;    Lowther 

Va.  547;  3  S.  E.  Rep.  120.  Oil  Co.  v.  Miller-Sibley  Oil  Co.    (W. 

isRrown   v.    Fowler.   G5   Ohio   St.  Va.).  44  S.  E.   Rep.  433. 

507;    03   N.   E.    Rep.   76;    Patton   v.  2n  Roberts  v.  McFaddin   (Tex.  Civ. 

Axley    50  N.  C    440.  Ann).  74   S.  W.   Rep.   105;  Natural 

i»  Lowther  Oil  Co.  V.  GuHVy,    (W.  Oil.    etc.,    Co.    v.    Teel     (Tex.    Civ. 


72  OIL    AND    GAS. 

§57.     Legal  interest  of  lessee  in  various  leases. —  Digest. 

Under  various  heads  we  have  discussed  the  interest  a  licensee, 
lessee  or  grantee  under  a  written  instrument  has  in  the  premises 
described  in  the  instrument  giving  oil  or  gas  raining  privileges. 
It  is  safe  to  say  that  all  the  cases  cannot  be  reconcileil  with 
respect  to  the  interest  the  ojx^rator  has  in  the  premises,  and 
nothing  more  can  be  done  than  to  enumerate  each  particular 
case,  or  a  number  of  them  ;  for  it  will  be  impractical  to  ex- 
amine and  state  the  result  of  all  of  them.  Cases,  however,  with 
respect  to  licenses  will  be  omitted  here,  for  they  have  been 
treated  elsewhere.  To  begin  the  enumeration.  An  agreement 
to  lease  land  for  a  term  of  years,  giving  the  exclusive  right  to 
bore  for  and  collect  all  the  oil  passes  a  corporeal  interest  in  the 
land.'^  A  guardian,  while  he  may  usually  give  a  lease  of  his 
ward's  pro}3€rty,  cannot  give  a  lease  for  the  purpose  of  develop- 
ing the  oil  in  it ;  for  the  reason  that  it  is  a  part  of  the  realty, 
and  such  a  lease  is  a  part  of  the  estate  of  the  ward.""  A  lease 
only  for  the  purpose  of  drilling  for  oil,  coal,  rock  or  petroleum 
given  to  the  lessee,  his  heirs  and  assigns,  for  twenty-five  years,  in 
consideration  of  one-half  the  oil  found,  vests  in  the  lessee  a  cor- 
poreal interest  in  the  business,  which  is  the  subject  of  eject- 
ment."'' A  grant  to  C,  his  heirs  and  assigns,  of  the  free  and  un- 
interrupted right  to  go  upon  a  tract  of  land  to  prospect,  bore 
and  take  ore,  oil  and  gas  out  of  the  earth,  the  grantor  to  receive 
one-third  of  all  taken  out,  and  reserving  the  right  of  tillage,  vests 
in  C  an  incorporeal  hereditament  in  fee."*  A  grant  of  all  the 
iron  ores  upon  and  under  a  tract  of  land,  with  the  exclusive  and 
full  right  to  mine  them,  is  a  conveyance  of  an  incorporeal 
hereditament  passing  in  fee  simple  the  entire  o\^aiership  of  tlie 


App.),  67  S.  W.  Rep.  45;  68  S.  W.  C.  532;   South  Penn.  Oil  Co.  v.  Mc- 

Eep.  979;  Emery  v.  Ledeque,  6  Tex.  Intire,  44  W.  Va.  296;  28  S.  E.  Rep. 

Civ.  App.  719;  72  S.  W.  Rep.  602.  922. 

21  Cnicago,     etc.,     Co.    v.     United  2t  Barker   v.  Dale,   3   Pitts.   L.   J. 
States  Co...  57  Pa.  St.  83;   Duke  v.  190. 

Hague,  107  Pa.  St.  06.  21  Funk  v.  Haldeman,   53   Pa.   St. 

22  Stoughton's  Appeal,   88  Pa.   St.  229;  Union  Petroleum  Co.  v.  Blivcn, 
198;   Chamberlin  v.  Dow,   16  W.  N.  etc.,  Co.,  72  Pa.  St.  173. 


LEASES.  i  6 

ore  in  tlie  land.""'^  An  exclusive  possession  of  snch  of  tlie  land  as 
is  necessary,  givftii  for  the  purpose  of  searching  for,  producing, 
storing  and  transporting  oil,  is  not  a  mere  license.""  A  grant 
of  the  "  exclusive  right  and  privilege  of  digging  and  boring  for 
oil  and  other  minerals,"  for  a  term  of  years  is  a  lease  for  the 
production  of  oil  and  not  ii  sale  of  the  oil."'  A  lease  for  a  term 
of  years,  with  right  to  bore  for  oil  and  take  it,  rendering  a  part 
to  the  owner  of  the  land,  confers  an  estate  in  the  nature  of  an 
incorporeal  hereditament."*  An  instrument  giving  B  the  right 
to  enter  on  certain  lands  and  prospect  for  coal,  and  if  found  in 
sufficient  quantities  to  satisfy  him,  giving  him  the  privilege  to 
mine  and  remove  it,  paying  a  certain  amount  per  ton,  and  also 
giving  him  the  right,  at  his  pleasure,  to  abandon  the  agreement, 
creates  only  an  estate  at  will."**  An  instrument  granting  and 
conveying  the  right  to  enter  on  certain  lands  and  take  the  min- 
erals thereon  forever,  unless  none  should  be  found  within  a  cer- 
tain named  period,  is  a  grant  in  fee,  though  called  a  "  lease."  ^^ 
A  right  given  in  the  following  language  is  a  lease:  "  The  said 
party,  of  the  first  part,  for  and  in  consideration  of  the  rents 
and  covenants  hereinafter  mentioned,  to  be  paid  and  performed 
on  the  part  of  the  said  party  of  the  second  part,  the  right  to  mine 
and  take  away  coal  from  the  Salem  vein,"  etc.  "  A  right  to 
use  a  mine  necessarily  implies  a  right  to  possess  it;  and  a  grant 
of  the  use  and  possession,  in  consideration  of  something  t/>  be 
rendered,  is  exactly  what  constitutes  a  lease  of  the  thing  to  be 
possessed."  ^^     A  grant  of  land  for  an  indefinite  period,  with 

25  Grove  v.  Hodges,  55  Pa.  St.  the  usual  oil  lease  was  called  a 
504;  Caldwell  v.  Fulton,  31  Pa.  St.  license  coupled  with  a  conditional 
475.  grant. 

26  Kitchen  v.  Smith,  101  Pa.  St.  A  judgment  rendered  against  a 
452.  licensee  operating  an  oil  well  is  not 

27Duffield  V.  Hue,  129  Pa.  St.  94;  a  lien  on  such  well.     Meridian  A'a- 

18  Atl.  Rep.  566;  Barnhart  v.  Lock-  tional  Bank  v.  McConica,  8  Ohio  C. 

wood,  152  Pa.  St.  82;   25  Atl.  Rep.  Ct.  Rep.  442;  4  Ohio  Cir.  Dec.  106. 

879.     See  Wettengel  v.  Gormley,  160  29  Knight  v.  Indiana,  etc.,  Co.,  47 

Pa.  St.  559;  28  Atl.  Rep.  934.  Ind.  105. 

2s  Ohio  Oil  Co.  V.  Toledo,  etc.,  Co.,  so  Suffern  v.  Butler,  21  N.  J.  Eq. 

4  Ohio  C.  Ct.  Rep.  210;  2  Ohio  Cir.  410;    affirming   4    C.    E.   Green    Ch. 

Dee.  505.  (N.  J.)   202. 

In  Herrington  v.  Wood,  6  Ohio  C.  si  Offerman    v.    Starr,    2    Pa.    St. 

Ct.  Rep.  326,  3  Ohio  Cir.  Dec.  475,  394. 


^4:  OIL    AND    GAS. 

leave  to  take,  under  s}>e.cified  conditioTis,  all  the  coal  contained 
in  the  land,  with  a  provision  for  a  forfeiture  on  no«-oorapliance 
Ly  the  grantee,  is  a  lease.^"  A  lease  of  land  in  Kansas  hy  a 
married  man,  who  is  the  owner,  occupying  the  same  with  his 
family  as  a  homestead,  giving  txD  the  lessee  the  right  to  prospect 
for  coal,  gas,  oil  and  other  minerals  at  his  pleasure,  to  erect  nec- 
essary buildings,  and  to  excavate  mines  and  pipe  oil  and  gas,  is 
such  an  alienation  of  the  homestead  as  requires  the  wife's  con- 
sent, under  the  constitution  of  that  State.^^  A  contract  to  raise 
not  less  than  so  much  ore  a  year  from  mines  on  certain  land, 
for  which  the  contractor  is  to  receive  so  much  per  ton,  to  have 
tools  furnished,  and  the  use  of  the  land  and  buildings,  is  a 
lease.^*  An  agreement  letting  lands  to  l>e  examined  for  min- 
erals and  taking  tliem  out  at  a  royalty  payable  quarterly,  the 
right  to  continue  so  long  as  the  grantee  deems  it  advisable  to 
operate,  and  to  be  forfeited  on  cessure  of  one  year  to  operate,  is 
a  lease  from  year  to  year.^^  A  parol  agreement  that  a  person 
may  enter  on  the  land  of  another,  dig  ore  and  erect  buildings, 
for  a  consideration,  has  been  held  to  be  a  lease.^*'  An  instru- 
ment giving  exclusive  possession  of  land  for  the  purpose  .')f 
searching  for,  producing,  storing  and  transporting  oil,  is  a  lease, 
establishes  the  relation  of  landlord  and  tenant,  and  en- 
ables the  tenant  or  lessee  to  recover  from  the  landlord  or  lessor 
taxes  he  has  paid  under  a  statute  allowing  a  tenant  to  recover 
the  amount  of  taxes  he  has  paid  on  the  leased  premises.^^  A 
lease  of  land  "  of  the  exclusive  right  for  the  sole  and  only  pur- 
pose of  mining  and  excavating  for  petroleum,  rock  and  carbon 
oil,"  "  to  hold  the  said  premises  exclusively  for  the  said  purposes 
only,"  for  a  term  of  years,  the  lessor  reserving  the  privilege  to 
till  the  land  and  remove  the  timber  on  it  and  the  use  of  all  other 
land  not  necessary  for  producing  oil,  and  also  reserving  certain 

•■'sGartside  v.  Outley,  58  111.  210.  as  Patton  v.  Axley.  5  Jones  L.   (N. 

33  Franklin    Co.    v.    Coal    Co.,    43  C.)    440. 

Kan.    .518;    23   Pac.   Rep.   630.     See  36  Sheets  v.  Allen,  8l»  Pa.  St.  47; 

also   Monfort   v.   Lanyon    Zinc    Co.,  Moore  v.  Miller,  8  Pa.  St.  272,  283. 

(Kan.),   72  Pac.  Rep.   784.  See  Ganter  v.  Atkinson,  35  Wis.  48. 

•■!•»  Shaw  V.   Wallace,   25  N.   J.   L.  37  Kitclien  v.   Smith,    101    Pa.   St. 

4r,.S.  452. 


LEASES.  I  O 

royalties,  is  a  lease  in  fact  and  not  a  license.'"'^  An  instrmnent 
containing  the  words  "  liatli  granted  and  leased,  and  by  these 
presents  do  grant,  lease,  and  to  farm  let,"  and  convey  "  the  ex- 
clnsive  right  to  enter  upon  all  the  lands  "  of  the  so-called  lessor, 
"  and  dig  and  mine  upon  the  same  for  phosphate  rock  and  other 
minerals  to  any  extent  he  may  require,  and  carry  away  and  sell 
the  same  for  his  own  use,"  is  a  lease  operating  as  a  conveyance  of 
the  minerals  in  place,  and  not  a  mere  license  to  dig.^®  An  instru- 
ment containing  the  words  "  does  demise  and  lease  "  for  mining 
purposes  only,  the  grantee  having  the  right  to  erect  all  neces- 
sarv'  buildings  and  machinery,  and  being  required  to  provide 
and  keep  closed  gates  through  which  to  enter  and  pass  off  the 
land,  giving  him  possession  for  ten  years,  at  a  fixed  rent,  is  a 
lease  and  not  a  license.*"  A  contract  conveying  certain  land  for 
a  term  of  years,  and  so  long  as  gas  and  oil  be  found  in  paying 
quantities,  is  a  lease  coupled  with  a  conditional  grant,  dependent 
on  the  production  of  gas  or  oil  in  paying  quantities.*^  A  con- 
tract allowing  a  person  to  go  to  a  particular  part  of  the  owner's 
land,  giving  him  exclusive  right  to  the  minerals  thereon  so  long 
as  he  complies  with  the  terms  and  conditions  of  his  contract,  on 
payment  of  a  royalty  on  all  minerals  mined,  is  a  lease,  altbough 
it  has  no  determinate  period.*'  A  grant  of  a  right  to  work  a 
stone  quarry  creates  the  relation  of  landlord  and  tenant.*^  An 
agreement  "  for  the  purpose  of  exploring  for,  mining,  taking 
out,  and  removing  therefrom  the  merchantable  shipping  iron 
ore  which  is  or  which  hereafter  may  be  found  in,  or  under  "  cer- 

38  Duke  V.  Hague,  107  Pa.  St.  57;  42  Bucnanan  v.  Cole,  57  Mo.  App. 

Brown  v.  Beecher,  120  Pa.  St.  590;  11;  Springfield,  etc..  Co.  v.  Cole,  130 

15    Atl.     Rep.    608;     Wettengel    v.  Mo.  1;  Young  v.  Ellis,  91  Va.  297; 

Gormley,   160  Pa.   St.   559;   28  Atl.  21  S.  E.  Rep.  480. 

Rep.  934;   Gale  v.  Petroleum  Co.,  6  43  Q'Donnell  v.   Luskin,   12  Mont. 

W.  Va.  200.  Co.  L.  Rep.    (Pa.)   109. 

3!)  Malcomson  v.  Wappoo  Mills,  85  As   to  the  right  of  the  lessee   to 

Fed.  Rep.  907.  maintain  ejectment,  see  Kirk  v.  Mat- 

40  Kirk  V.  Mattier,  140  Mo.  23;  41  tier,  140  Mo.  23;  41  S.  W.  Rep.  252. 
S.  W.  Rep.  252;  Consolidated  Coal  In  New  York  oil  leases  and  wells 
Co.  V.  Peers,  150  111.  344;  37  N.  E.  held  by  virtue  of  them  are  made  per- 
Rep.  937,  affirming  39  111.  App.  453.  sonal  property  by  statute.     Wagner 

41  Herrington  v.  Wood,  6  Ohio  Cir.  v.  Mallory,  169  N.  Y.  501 ;  62  N.  E. 
Ct.  Rep.  326;  3  Ohio  Cir.  C.  Dec.  Rep.  584,  affirming  58  N.  Y.  Supp. 
475.  526. 


7G 


OIL    AND    GAS. 


tain  land,  and  which  reserves  the  use  and  possession  of  the  land, 
except  as  such  use  and  possession  may  interfere  with  the  mining 
operations,  is  a  lease  for  mining  ore,  and  ceases  when  it  is 
demonstrated  there  is  no  iron  ore  on  the  premises.** 

§58.     Sale  of  oil  and  gas,  and  not  a  lease. 

A'n  instrument  may  he  so  drawn  as  to  convey  an  interest  in 
the  solid  minerals  beneath  its  surface,  with  the  right  to  mine 
them.  Such  an  instrument  is  not  to  be  strictly  construed  as 
conveying  an  interest  in  the  land.  Thus  where  a  sot-called  lease 
of  lands  provided  that  the  lessee  (so  called)  should  have  all  the 
coal  beneath  the  surface  for  a  long  term  of  years,  the  lessee  to 
take  out  a  minimum  number  of  tons  each  year  until  all  the  avail- 
able coal  was  removed,  and  pay  so  much  a  ton,  the  minimum 
amount  to  be  paid  for  whether  mined  or  not,  it  was  held  that 
this  was  an  absolute  sale  of  the  coal,  conditioned,  of  course, 
upon  its  being  removed,  and  not  a  lease  of  the  premises  for  min- 
ing purposes.*^  Similar  decisions  have  been  made  with  refer- 
ence to  oil  and  gas,  the  royalty  representing  the  purchase 
monev.*® 


44  Gibben  v.  Atkinson,  64  Mich. 
651;   31   N.   W.  Rep.   570. 

45  In  re  Lazarus'  Est.,  145  Pa.  St. 
1 ;  23  Atl.  Rep.  372 ;  Hope's  Appeal, 
3  Atl.  Rep.  23 ;  In  re  Hancock's  Est., 
7  Kulp  (Pa.),  36;  Hobart  v.  Mur- 
ray, 54  Mo.  App.  249;  Lehigh  Coal 
Co.  V.  Wright,  7  Kulp  (Pa.),  434; 
15  Pa.  Co.  Ct.  Rep.  433.  (Contra 
Austin  V.  Huntsville  Coal,  etc.,  Co., 
72  Mo.  535.)  Raynolds  v.  Hanna, 
55  Fed.  Rep.  783;  Adams  v.  Ore 
Knob,  etc.,  Co.,  7  Fed.  Rep.  634; 
Williams  v.  Gibson,  84  Ala.  228;  4 
So.  Rep.  350;  Manning  v.  Frazier, 
96  Til.  279;  Consolidated  Coal  Co.  v. 
Peers.  150  111.  344;  37. N.  E.  Rep. 
937 ;  Chester  Emery  Co.  v.  Lucas, 
112  Mass.  424;   Delaware,  etc.,  Co. 


V.  Sanderson,  109  Pa.  St.  583;  Lilli- 
bridge  v.  Lackawanna  Coal  Co.,  143 
Pa.  St.  293;  22  Atl.  Rep.  1035; 
Woodside  v.  Ciceroni,  93  Fed.  Rep. 
1;  35  C.  C.  A.  177;  Hosack  v.  Crill 
(Pa.),  53  Atl.  Rep.  640.  See  Roweil 
V.  Bodfish  (Me.),  10  Atl.  Rep.  448; 
Fairchild  v.  Dunbar,  128  Pa.  St. 
485;   18  Atl.  Rep.  443. 

4G  In  re  Dunat's  Est.,  29  Pittsb. 
L.  J.  105;  Wilson  v.  Youst,  43  W. 
Va.  826;  28  S.  E.  Rep.  781;  39  L. 
R.  A.  292;  Detlor  v.  Holland,  57 
Ohio  St.  492;  49  N.  E.  Rep.  690; 
Kerlin,  etc.,  Co.  v.  Toledo.  20  Oliio 
C.  C.  Rep.  603;  8  Ohio  N.  P.  62; 
Lawson  v.  Kirchener,  50  W.  Va. 
344;  40  S.  E.  Rep.  344;  Hosack  v. 
Crill    (Pa.),  53  Atl.  Rep.  641. 


l.IiASES.  77 

§59.     Presumption  as  to  ownership  of  oil  or  gas  in  ground. 

The  presumption  is  that  the  owner  of  the  hind  owns  tlie  gas 
and  oil  beneath  the  surface ;  but  this  is  a  presumption  that  may 
be  rebutted,  by  showing  that  either  the  present  owner  or  a  for- 
mer one  had  conveyed  such  oil  and  gas  to  another.^^ 

§60.     Administrator's  right  to  lease  or  contract. —  Presumption. 

The  right  of  an  administrator  of  the  lessee  to  lease  or  con- 
tract for  searcliing  for  oil  or  gas  and  the  operation  of  the 
premises,  will  depend  upon  whether  the  estate  granted  is  an 
estate  of  inheritance  or  merely  personal  property.  In  the  case 
of  solid  minerals  the  minerals  may  be  conveyed  separate  and 
apart  from  the  soil  in  which  they  rest ;  and  when  so  conveyed 
they  constitute  a  separate  and  distinct  estate,  vested  in  the 
grantee,  while  the  grantor  retains  the  fee  of  the  land,  except 
that  of  the  minerals.  The  presumption  is  that  the  minerals 
belong  to  the  owner  of  the  land,  but  tliat  "  may  be  rebutted  by 
evidence,  showing  a  severance  of  the  mines,  and  a  distinct  estate 
and  interest  in  them  by  grant  or  reservation."  *^  Minerals  so 
conveyed  constitute  an  inheritance  separate  and  distinct  from 
the  surface ;  *°  and  pass  to  the  heirs  and  not  to  the  administra- 

*~  Adams   v.    Briggs    Iron   Co.,    7  Edwards   v.   McClurg,    39   Ohio    St. 

Cush.  361 ;  Grove  v.  Hodges,  55  Pa.  41 ;   Newark  Coal  Co.  v.  Upson,  40 

St.   504    (eases  concerning  coal  and  Ohio  St.   17;   Logan  v.   Washington 

iron  ore).  Co.,    29    Pa.    St.    373;    Caldwell    v. 

4s  Adams   v.    Briggs    Iron    Co.,    7  Fulton.   31    Pa.   St.  475;   Harlan  v. 

Cush.  361;  Kincaid  V.  McGowan,  88  Lehigh,    etc.,   Co.,    35   Pa.    St.    287; 

Ky.  91;  4  S.  W.  Rep.  802;  Chester  Caldwell    v.    Copeland,    37    Pa.    St. 

Emery  Co.  V.  Lucas,  112  Mass.  424;  427;    78   Am.    Dec.   436;    Brown   v. 

Hobart  v.  Murray,  54  Mo.  App.  249.  Corey,   43   Pa.   St.   495 ;    Pennsylva- 

49  Warden  v.  Watson,  93  Mo.  107 ;  nia  Salt  Co.  v.  Neel,  54  Pa.  St.  9 ; 

5  S.  W.  Rep.  605;  Hartwell  v.  Cam-  Briggs  v.  Davis,  81%  Pa.  St.  470; 

man.  2  Stock  Eq.   (N.  J.)   128;  Suf-  Sanderson  v.  Scranton,   105  Pa.   St. 

fern  v.  Butler,  4  C.  E.  Gr.  Ch.    (N.  469;    Hope's   Appeal,   29   W.   N.    C. 

.J.)    202;  affirmed  21  N.  J.  Eq.  410;  (Pa.)  365;  Montooth  v.  Gamble,  123 

Canfield  v.  Ford,  28  Barb.  336;  Mar-  Pa.  St.  240;  16  Atl.  Rep.  594;  Fair- 

vin  V.  Brewster,  etc.,  Co.,  55  N.  Y.  child   v.    Dunbar   Furnace    Co.,    128 

538;    Lacustrine,   etc.,   Co.   v.    Lake  Pa.  St.  485;  18  Atl.  Rep.  443;  Lilli- 

Guano,  etc.,  Co.,  82  N.  Y.  476;  First  bridge  v.  Lackawanna,  etc.,  Co..  143 

National  Bank  v.  Dow,  41  Hun  13;  Pa.    St.    293;    22    Atl.    Rep.    1035; 


78  OIL    AND    GAS. 

tor.^**  Since  oil  and  gas  is  also  a  mineral  and  a  part  of  the  soil 
which  holds  it,  belonging  to  the  owner  of  such  soil,  and  the  sub- 
ject of  a  distinct  conveyance  which  gives  the  grantee  (by  what- 
ever name  he  may  be  called)  an  interest,  it  necessarily  follows 
tliat  a  grant  of  the  oil  and  gas  beneath  the  surface  of  a  tract  of 
land  will  pass  to  the  heir  of  the  grantee  and  not  to  his  personal 
representatives;  but  if  the  instrument  gives  the  grantee  a  mere 
lease  and  does  not  give  him  an  interest  in  the  land,  it  does  pass 
to  his  administrator.^^ 

§61.     Lease  and  not  a  license. 

It  is  often  difficult  to  determine  whether  an  instrument  is  a 
lease  or  a  license ;  and  in  fact  courts  differ  so  much  that  their 
decisions  on  the  question  cannot  be  reconciled.  The  same  in- 
strument will  be  considered  a  lease  by  some  courts  and  a  license 
by  others.  We  give  several  examples  that  have  been  construed 
by  the  courts.  An  instrument  which  grants,  demises  and 
lets  "  all  petroleum  and  gas  in  or  under  that  certain  tract 
of  land  .  .  .  and  also  all  the  said  tract  of  land  for  the  pur- 
pose and  for  the  exclusive  right  to  drill  and  operate  upon  said 
premises  for  said  petroleum  and  gas,"  for  a  limited  time,  is  a 
lease  and  not  a  mere  license.^'  An  instrument  for  a  year  con- 
taining the  following  clause :  "  The  party  of  the  second  part 
liereby  agrees  to  work  said  mine  in  a  workmanlike  manner,  and 
to  pay  to  the  party  of  the  first  part  royalty  from  all  ores  taken 

JCingsley   v.  Hillside,   etc.,   Co.,    144  oil    wells    and    fixtures,    and    rights 

Pa.  St.  613;   23  Atl.  Rep.  250;   La-  held  by  virtue  of  any  lease,  should 

zarus'  Estate,  145  Pa.  St.  1;  23  Atl.  be  deemed  personal  property  for  all 

Rep.  372;  Plummer  v.  Hillside,  etc.,  purposes  except  taxation,  the  right 

Co.,   160  Pa.   St.  483;   28   Atl.   Rep.  to   oil   is   personalty,   and   does   not 

•  853;   Powell  v.  Lantzy,  173  Pa.  St.  pass  under  a  deed  executed   by  an 

:'543;    34   Atl.   Rep.   450;    Massot   v.  executor,   the   devisee   of   the   lessee 

"Moses,   3   S.   C.    168;   Lee  v.    Bauni-  having  the  right  to  convey  all  the 

jrardner,     86    Va.     315;     10    S.     E.  lands    owned    by    the    latter,    or    in 

Hep.   3.  which  he  has  an  interest.     Wagner 

50Barksdale    v.    Parker,    87    Va.  v.  Mallory,  169  N.  Y.  501;  62  N.  E. 

141;    12   S.   E.  Rep.  342;   Keeler  v.  Rep.  584;  affirming  58  N.  Y.  Supp. 

Trueman,  15  Colo.  143;  25  Pac.  Rep.  526. 

311;  Carrhart  v.  Montana,  etc.,  Co.,  52  Woodland  Oil  Co.  v.  Crawford, 

1   Mont.   245.  55  Ohio  St.  161;  36  Ohio  L.  J.  231; 

51  Whore  a   statute  provide^!    that  -14  X.  E.  Rep.  1003;  :M  L.  R.  A.  62. 


T.EASES.  79^ 

out  .  .  .  from  the  mine  by  the  party  of  tlie  second  part " — 
constitutes  it  a  lease,  and  not  a  mere  license.^^  An  agreement 
giving  an  exclusive  right  to  mine  coal  on  certain  land  for  a  term 
of  years  is  a  lease  and  not  a  mere  license.^*  An  agreement  of  an 
owner  of  mining  lands,  allowing  a  person  to  enter  on  them  at 
a  particular  place  and  have  exclusive  possession  to  dig  for  min- 
erals thereon,  so  long  as  he  c-omplies  with  the  conditions  of  the 
contract,  is  a  lease  and  not  a  license.^'* 

v^62.     License. 

As  said  previously,  a  license  may  be  created  by  parol,  and 
whatever  right  is  attempted  to  be  given  by  parol  is  a  mere  license 
and  nothing  more.  As  oil  or  gas  is  a  mineral,  a  parol  grant  to 
bore  for  either  of  them  is  merely  a  license.  But  when  the  oil  has 
been  severed  from  the  ground,  and  put  into  a  pipe  line  or  a  tiink, 
it  becomes  personal  property  of  the  licensee ;  and  so  the  same  is 
true  of  gas.^''  This  is  the  case  with  respect  to  hard  minerals.''^ 
One  operating  under  a  parol  license  is  not  a  tenant  of  the 
licensor;  nor  is  he  a  trespasser. ^^  A  mere  license  to  mine  is 
not  assigiuible  —  it  is  a  mere  personal  privilege.^"      One  tenant 

53  Paul  V.  Cragnas,  25  Nev.  293;  Bridgevvater  Gas  Co.,  (W.  Va.)  ;  4'2 
59  Par.  Rep.  857 ;  60  Pac.  Rep.  983 ;       S.  E.  Rep.  6.55. 

47  L.  R.   A.  540.  57  Williams   v.  Morrison,  32   Fed. 

54  Consolidated  Coal  Co.  v.  Peers,  Rep.  177;  Wheeler  v.  West,  71  Cal. 
150  111.  344;  37  N.  E.  Rep.  937;  126;  11  Pac.  Rep.  871;  Omaha,  etc.. 
Harlan  v.  Coal  Co.,  35  Pa.  St.  287;  Co.  v.  Tabor,  13  Colo.  41;  21  Pac. 
Marquis   of   Bute   v.   Thompson.    13  Rep.  925. 

M.  and  W.  487;    14  L.  .1.  Exch.  95;  In  Utah  a  parol  lease  of  a  mini' 

Massott  V.  Moses,  3  S.  C.  168.  is   valid,   if   the   lessee   has   entered 


55  Buchanan  v.  Cole.  5/  Mo.  App 
11.  See  also  Young  v.  Ellis,  91  Va 
297;  21  S.  E.  Rep.  480;  Harlan  v 
Lehigh  Coal  Co.,  35  Pa.  St.  287 
Carr  v.  Benson,  L.  R.  3  Ch.  App 
.524;    78  L.  T.   696;    16  W.  R.  744; 


and  expended  labor  and  money  in 
preparations  for  mining.  Ruffntti  v. 
Societe,  etc..  10  Utah  386;  37  Pac 
Rep.    591. 

58\\niceler  v.  West,   71   Cal.   126  r 
11    Pac.    Rep.    871;    Kamphouse    v. 


Hodgson  V.  Parkins,  84  Va.  706;   5  Gaffner,     73     111.    453;     Desloge    v. 

S.   E.   Rep.   710.  Pearce,  38  Mo.  588. 

56  Heller  v.  Dailey,   28  Ind.  App.  59  Manning  v.  Frazier.  96  111.  279: 

555;  63  N.  E.  Rep.  490;  Wagner  v.  East  Jersey  Co.  v.  Wright    32  N.    T. 

IVIallory,    169   N.  Y.   501;    62   N.   E.  Eq.  248;   Gaboon  v.  Bayaud.  123  N. 

Rep.   584;    Parish   Fork   Oil    Co.   v.  Y.  298,  25  N.  E.  Rep.  376;  Dnrk  v. 

Johnston.   55  Pa.   St.    164;   Hodgson 


80  OIL    AND    GAS. 

ill  common  cannot  bind  his  co-tenant  by  giving  a  license.^"  A 
snbseqnent  lessee  or  licensee  with  knowledge  of  the  first  license 
ta-kes  it  subject  tliereto.**^  A  husband  may  give  a  license  to 
mine  on  tlie  homestead  premises,  without  the  consent  of  his 
wife,  if  the  mining  does  not  impair  its  enjoyment  for  the  uses 
of  a  homestead  ;  and  even  tliough  her  consent  was  necessary,  yet 
it  will  be  inferred,  if  she  had  full  knowledge  of  the  work  done, 
or  expenses  incurred,  and  made  no  objection.*'"  The  owner  of 
land  leased  it  ten  years  for  mining  purposes ;  and  subsequently 
entered  into  an  agreement,  before  the  term  had  expired,  witli 
the  lessee  by  which  it  was  agreed  that  if  the  latter  would  sink 
a  well,  plank  it,  and  put  in  a  pump  and  engine,  he  should  bo 
entitled  to  dig  all  the  ore  on  the  lessor's  land,  paying  twenty- 
five  cents  per  ton  for  it.  It  was  held  that  this  was  not  a  con- 
veyance of  the  ore,  but  a  mere  license  to  take  it,  the  compensa- 
tion for  the  privilege  of  taking  it  being  rated  at  twenty-five  cents 
a  ton."^  An  owner  of  land  bequeathed  it  to  his  son,  using  the 
following  language :  ''  To  my  son,  John,  I  give  and  bequeath 
the  farm  or  plantation  he  now  occupies;  to  be  enjoyed  by  him, 
his  heirs  and  assigns  forever,  with  free  privilege  of  taking  what 
coal  he  wants  for  his  own  use  or  plantation  off  the  home  planta- 
tion." At  the  time  the  will  was  made,  an  open  mine  existed  on 
the  home  plantation,  but  none  on  the  farm  occupied  by  the  son. 
It  was  held  that  the  privilege  of  taking  coal  from  the  home  plan- 
tation was  personal  to  the  son,  and  did  not  pass  to  his  successors 
in  title  to  the  premises  devised.***  An  agreement  giving  ''  the 
exclusive  use  and  privilege  of  digging,  hauling  off,  and  working 
any  ore  now  found,  or  which  may  hereafter  be  found,  any- 
where "  on  a  certain  tract  of  land,  confers  a  mere  license,  and 

V.  Perkins,  84  Va.  706;  5  S.  E.  710.  St.    44G.     The    court    distinguishes 

A  license  coupled  with  an  interest  is  this  case  from  the  case  of  Caldwell 

assignable.     Funk  v.  Haldeman,   53  v.  Fulton,  7  Casey  475,  and  says  it 

Pa.   St.   229.  closely  follows      Johnston  Iron  Co. 

60  Tipping  V.  Pobbins,  64  Wis.  v.  Cambria  Iron  Co.,  8  Casey  241, 
546;  25  N.  W.  Rep.  713;  Tipping  and  Clement  v.  Younger,  4  \Vrig!it 
V.  Robbins,  71   Wis.  507;   37  N.  W.  (Pa.)    341. 

Rep.   427.  •'^  Youghiogheny    R.    Coal    Co.    v. 

61  Harkness  v.  Burton,  39  la.  101.  Pierce,  153  Pa.  St.  74;  25  Atl.  Rep. 

62  Harkness  v.  Burton,  supra.  1026. 

63  Neumover   v.    Andreas,    57    Pa. 


LEASES.  81 

creates  no  easement  or  estate  in  the  land/'^  In  Pennsylvania  a 
lessee  of  oil  territory  who  has  exclusive  privilege  of  the  land 
for  the  purpose  of  searching  for  oil,  producing,  storing  and 
transporting  it,  is  more  than  a  mere  licensee  —  he  is  a  tenant."^" 
A  conveyance  of  ''  the  free  and  uninterrupted  use,  privilege, 
and  liberty  to  go  on  to  any  part  "  of  a  certain  described  tract  of 
land  "  for  the  purpose  of  prospecting,  digging,  excavating,  and 
boring  and  erecting  machinery  "  ''  necessary  for  prospecting, 
experimenting,  or  searching  to  find  oil,"  with  a  right  to  the  ex- 
clusive use  of  one  acre  about  each  well,  and  a  right  of  way  for 
"  himself,  lands,  and  teams,  tenants  and  undertenants,  occu- 
piers or  possessors  of  said  springs,  mines,  ores,  or  coal  beds,  in 
common  with  "  the  grantor,  the  consideration  being  two  hun- 
dred dollars,  and  if  oil  or  minerals  Avere  found,  one-third  of  the 
product,  and  if  none  be  found,  the  premises  to  revert  to  the 
grantor  —  creates  a  license  coupled  with  an  interest  to  work  the 
land  for  minerals.*'"  Where  an  owner  of  an  island  and  a  farm 
granted  the  right  to  search  for  oil  on  the  island,  and  agreed  if  the 
grantee  found  oil  there,  to  sell  him  the  island  for  a  named  sum ; 
and  he  also  gave  him  the  exclusive  right  to  bore  wells  on  the 
farm,  at  a  certain  rent  for  each  well,  and  that  he  might  remove 
the  machinery  if  unsuccessful,  this  was  held  to  be  personal 
license,  and  not  assignable."^  A  quit  claim  deed  has  been  held  to 
be  a  mere  license  to  mine.*"^  A  contract  of  sale  and  purchase, 
absolute  in  form,  but  requiring  payment  to  be  made  out  of  min- 
eral produced  from  the  land,  has  been  held  to  be  a  mere  option, 
coupled  witli  a  license  to  work.^" 


esBarksdale   v.  Hairston,   81   Va.  164;   9  Morr.  Min.  Rep.  283;  Rynd 

764;    Hodgson    v.    Perkins,    84    Va.  v.   Rynd   Farm   Oil   Co.,   63   Pa.   St. 

706;  5  S.  E.  710.  397;    Thompson's    Appeal,    101    Pa. 

66  Kitchen  v.   Smitn,   101   Pa.   St.  St.  225;  Lynch  v.  Seymour,  15  Can. 
452;  Duke  v.  Hague,  107  Pa.  St.  57;  Sup.   Ct.   Rep.  341. 

Chicago,  etc..  Co.  v.  United  States,  «»  Baker  v.   Clark.    128   Cal.    181; 

etc.,  Co.,  57  Pa.  St.  83.  60  Pac.  Rep.  677. 

67  Funk  V.  Haldeman,  53   Pa.   St.  to  Smith   v.  Jones,  21   Utah   270; 
229.  60  Pac.  Rep.   1104. 

68  Dark   v.   Johnston,   55   Pa.    St. 


82  OIL    AND    GAS. 

§63.     License. —  Consideration. —  Revocation. 

A  license  reduced  to  writing,  if  supported  by  a  sufficient  con- 
sideration, may  be  irrevocable.  Such  a  license  may  have  the 
force  of  an  incorporeal  hereditament,  and  take  effect  as  a 
covenant.^^  Such  a  license  is  one  coupled  with  an  interest.^' 
Thus  where  a  license  was  given,  in  consideration  of  one  hundred 
dollars  already  paid,  of  an  exclusive  privilege  to  drill  oil  wells 
on  certain  land  for  the  term  of  ten  years,  tlie  licensee  to  pay 
ten  dollars  a  year  for  each  well  drilled  from  which  he  con- 
tinuously pumped  oil,  it  was  held  to  be  an  irrevocable  license.^^ 

§64.     License,  revocation. 

While  a  parol  license  protects  the  licensee  against  the  charge 
of  trespass  so  long  as  it  is  in  force,  yet  the  licensor  may  revoke 
it  at  any  time.  A  conveyance  of  the  property  is  a  revocation 
of  the  license,"^*  for  tlie  reason  that  a  license  is  purely  personal, 
and  not  a  part  of  the  land.^'^  But  after  a  license  has  been  fully 
executed,  and  is  not  dependent  on  continuous  acts,  it  cannot  be 
revoked.^*'  Improvements  placed  ujTOn  the  ground  will  not  pre- 
vent the  revocation  of  a  parol  license;  ^^  but  tlie  licensor  must 

Ti  Boone   v.    Stover,   66   Mo.   430;  ^s  Kamphouse   v.   Gaffner,   73   111. 

Desloge    v.     Pearce,     38    Mo.     588 ;  453 ;  Barry  v.  Worcester,  143  Mass. 

Grubb    V.    Bayard,    2    Wall    Jr.    81;  476;    10  N.  E.   Rep.   180;   Desloge  v. 

Grubb  V.   Guilford,   4   Watts    (Pa.)  Pearce.    38   Mo.    588;    Barksdale   v. 

223.     See  Pifer  V.  Brown,  43  W.  Va.  Hairston,    81    Va.    764;     Geiger    v. 

412;  27  S.  E.  399  Rep.  — ;  49  L.  R.  Green,  4  Gill    (Md.)    472;   Miser  v. 

A.  497;  and  note  in  last  volume.  O'Shea,   37   Ore.  231;    62  Pac.  Rep. 

72  Brown  v.   Beecher,    120  Pa.   St.  491;  Wheeler  v.  West,  71   Cai.  120; 

590;     15    Atl.    Rep.    608;    Funk    v.  11  Pac.  Rep.  871;   Omaha,  etc.,  Co. 

Haldeman,  53  Pa.  St.  229.  v.  Tabor,  13  Colo.  41;  21  Pac.  Rep. 

"Dark    v.    Johnston.    55    Pa.    St.  925;    5    L.    R.    A.    236;    Kiddle    v. 

164;  93  Am.  Deo.  732;  9  Morr.  Min.  Brown,    20   Ala.    412;    56    Am.    Dec. 

Rep.  283;  Grubb  v.   Bayard,  2  Wall  202. 

.Jr.  81;    11  Fed.  Gas.  SO.     But  while  ^o  Kamphouse   v.    GafTner,   supra; 

Ihe  courts  treat  the  privilege  given  Funk  v.  Haldeman,  53  Pa.  St.  229; 

in    tliese    cases   as    licenses,    it   may  Rynd  v.  Rynd  Farm  Oil  Co.,  63  Pa. 

well   be  doubted    if  flic   instruments  St.  397;   Le  Fevre  v.  Le  Fevre,  4  S. 

did    not  give   an    adual    interest    in  and  R.  241;   Wood  v.  Leadbitter.  13 

the  real  estate   itself.  M.  and  W.  838;   Dark  v.  Jolinston, 

74  East  Jersey  Co.   v.   Wright,  32  55  Pa.  St.  10^*;  93  Am.  Dec.  732. 

N.  J.  Eq.  248.  77  Kamphouse    v.    Gaffner,    supra. 


■  leasp:s.  8S 

^ive  the  licensee  the  common  law  notice  of  six  months  —  the 
notice  due  a  tenant  at  will  —  or  refund  to  him  his  expenditure 
in  making-  the  improvements.  The  object  of  the  six  months' 
notice  is  to  make  the  improvements  available.'^  The  fact  that 
the  licensee  had  not  worked  a  mine,  under  a  license,  long 
enough  to  reward  him  for  labor  and  expenditures  made  —  will 
not  prohibit  the  revocation  of  his  license/'*  Upon  a  revocation 
of  the  license  by  notice  the  licensee  may  remove  his  machinery 
and  fixtures.^"  After  revocation,  if  the  licensee  take  out  min- 
eral, he  acquires  no  title  to  it/^  A  license  given  to  a  partner- 
ship to  take  out  mineral  is  revoked  by  a  dissolution  of  the  part- 
nership.*^ 

§65.     Merger. 

If  the  lessor  convey  the  fee  to  the  lessee,  there  is  a  merger  of 
the  estate,  and  the  lease  ceases  to  exist.^^  So  if  the  event  hap- 
]>ens  upon  which  the  lease  is  to  cease,  there  is  a  merger.**  And 
the  same  is  true  where  the  owner  may  and  does  abandon  his 
lease ;  or,  where  he  may  not  abandon  it,  the  lessor  acquiescing  in 
his  abandoning  it.*^  So  a  deed  of  conveyance  will  merge  all 
pi-evious  contracts  with  respect  to  the  land  between  the  vendor 
and  vendee,  although  in  writing.*'^  If  a  corlessee  purcliase  the 
lands  of  the  lessor  or  his  grantee,  such  co-lessee  becomes  the  ab- 

78  Bush  V.  Sullivan,  3  Greene  S.  E.  Rep.  756 ;  Carroll  v.  Provin- 
(la.)   344;  54  Am.  Dec.  506;  Beatty       cial,  etc.,  Co.,  26  Can.  S.  C.  591. 

T.  Gregory,  17  la.  109;  85  Am.  Dec.  »*  State  v.  Coosaw  Mining  Co.,  47 

546;    Harkness    v.    Burton,    39    la.  Fed.    Rep.    225;    Fairchild    v.    Dun- 

101;   Huff  V.  MeCauley,  53  Pa.  St.  bar,   128  Pa.  St.  485;    18  Atl.  Rep. 

206;   Funk  v.  Haldeman,  53  Pa.  St.  443. 

229.  85  Elk    Fork   Oil   and   Gas   Co.   v. 

79  Desloge  v.  Pearce,  supra.  Jennings,  84  Fed.  Rep.  839 ;  Bloom- 

80  Desloge  v.  Pearce,  supra.  field  Coal,  etc.,  Co.  v.  Tidriek,  99  la. 

81  Lunsford  V.  La  Motte  Lead  Co.,  83;  68  N.  W.  Rep.  570;  Hawkins 
54  Mo.  426.  See  Chynowitch  v.  v.  Pepper,  117  N.  C.  407;  23  S.  E. 
Granby.  etc..  Co.,  74  Mo.  173.  Rep.  434;    Stage  v.   Boyer,   183   Pa. 

82Barksdale  v.   Hairston,   81   Va.  St.  560;  38  Atl.  Rep.  1035. 

764.  86  Carroll   v.    Prudence,   etc.,   Co., 

ssSnoddy  V.  Bolen.  122  Mo.  479;  26    Can.    S.    C.    591;    Raymond    v. 

24  S.  W.  Rep.   142;   Detlor  v.  Hoi-  Johnson,  17  Wash.  232;  49  Pac.  Rep. 

land.  57  Ohio  St.  492 ;  4!)  N.  E.  Rep.  492. 
«!)0;   Silva  v.  Rankin,  80  Ga.  79;  4 


84  OIL    AND    GAS. 

solute  owner  of  tlie  royalty  reserved  in  the  lease  due  from  the 
jtlier  lessee,  in  tlic  projwrtion  the  shares  held  by  him  bears 
to  that  of  sucli  co-lessee ;  but  the  latter's  interest  is  merged  in 
the  fee.^'  So  if  two  owners  of  separate  properties  make  a 
joint  lease  of  both  tracts,  and  the  lessee  purchase  one  of  the 
tracts,  the  lease  as  ti)  it  is  merged,  and  thereafter  tJie  lessee  pays 
only  one-half  tlie  rent  he  was  to  have  paid  tlie  two  lessors.®^ 

§66.     Consideration.  v 

Eveiw  lease  to  be  binding  must  be  based  upon  a  considera- 
tion ;  if  it  is  not,  it  is  void.**^  Thus  where  the  lease  did  not  bind 
the  lessee  to  begin  and  prosecute  the  work  with  diligence,  and 
the  only  consideration  for  it  was  a  part  of  the  oil  produced,  it 
was  held  that  it  was  void  for  want  of  mutuality.^''  The  same 
result  was  unhesitatingly  reached  where  the  lessee  had  a  right 
at  any  time  to  surrender  the  lease  without  paying  tlierefor,  and 
was  not  bound  to  begin  operations,  the  only  consideration  being 
a  part  of  the  oil  produced. ^^  An  agreement,  however,  to  pay 
a  dollar  an  acre  rent,  or  sink  a  well  as  the  lessee  may  see  fit,  tlie 
work  to  begin  by  a  certain  time,  and  the  lessor  to  have  a  certain 
part  of  tlie  oil  produced  and  so  much  for  each  gas  well  devel- 
oped, is  supported  b}'  a  sufficient  consideration.'''"  Where  one 
dolhir  was  paid  for  a  lease,  to  run  two  years,  with  the  privilege 
of  twenty-five  years  on  payment  of  one  dollar  per  acre,  it  was 
held  tliere  was  a  sufficient  consideration  to  hold  it.°^    But  where 

S7  Northwestern,  etc.,  Co.  v.  Davis,  Oil  Co.,  47  W.  Va.  84;  .34  S.  E.  Kep. 

9  Ohio  C.  Ct.  Rep.   551;    .38   Wkly.  923;  Treas.  v.  Eclipse  Oil  Co..  47  W. 

L.  Bull.  200;  40  \Yk\y.  L.  Bull.  251;  Va.  107;   .34  S.  E.  Bep.  933. 

(!  Ohio  Cir.  Dec.  529.  92  McMillan   v.    Philadelphia    Co., 

'^sHiggins  v.  California,  etc..  Co.,  159  Pa.  St.  142;  28  Atl.  Rep.  220; 

109  Cal.  304;  41  Pac.  Rep.  1087.  Allegheny    Oil    Co.    v.    Snyder,    106 

^^  Foster  v.  Elk  Fork,  etc.,  Co.,  90  Fed.   Rep.   764. 

Fed.  Rep.  178;   61  U.  S.  App.  576;  93  Brown  v.  Ohio  Oil  Co.,  21  Ohio 

"2  C.  C.  A.  560;  Huggins  v.  Daley,  C.  C.  117;   11   Ohio  C.   C.  Dee.  810; 

99   j-ed.  Rep.  600;   40  C.  C.  A.    12;  iiffirniod  65  Ohio  St.  507:   63  N.  E. 

48  L.  R.  A.  320.  Bop   76.     See  also  ]\Tonfort  v.    ]>an- 

9"  Foster   v.    Elk    Fork,    etc..    Co.,  yon  Zinc  Co.    (Kan.),  72  Pac.   Rep. 

svpra.  784. 

91  Eclipse  Oil   Co.  v.   South   Penn. 


T.EASES. 


85 


the  consideration  was  nominal,  and  die  lessee  led  the  lessor  to 
believe  operations  would  begin   soon,  but  tlie  lessee  had  the 
power  to  postpone  operations  on  payment  of  a  small  sum  of 
money,  a  court  of  equity  refused  to  uphold  the  lease,  regarding 
it  merely  as  an  option.'-*'     Where  the  lessee  agreed  to  complete 
a  second  well  within  a  certain  time  after  tlie  completion  of  the 
first  one,  but  did  not  agree  to  complete  or  even  commence  such 
first  one,  as  to  the  second  well  it  was  held  there  was  no  consid- 
eration for  the  contract."'     An  agreement  to  pay  "  one  dollar 
per  acre  each  year,"  where  no  oil  or  gas  Avas  found  within  two 
years,  was  held  too  indefinite  as  an  agreement  for  the  further 
extension  of  the  lease.""     Where  the  lessee  was  to  pay  at  least 
one  thousand  dollars  per  annum  for  the  use  of  raining  property, 
it  was  held  not  to  be  error  to  refuse  to  charge  the  jury  that 
owing  to  the  almost  entire  absence  of  ore  in  mining  the  con- 
sideration for  the  lease  had  failed."'     A  lease,  on  a  considera- 
tion of  one  dollar  paid,  gave  the  lessee  the  right  to  drill  for  oil 
and  gas,  with  privileges  incidental  to  the  production  and  re- 
moval of  the  oil  and  gas  produced,  for  a  term  of  two  years,  and 
as  long  thereafter  as  they  should  be  found  in  paying  quantities, 
not  exceeding  in  all  twenty-five  years.     The  lessee  was  to  pay 
a  rovalty  on  the  production.      It  then  provided  that  "  in  case 
no  well  shall  be  drilled  on  said  premises  within  two  years  from 
the  date  hereof,  this  lease  shall  become  null  and  void,  unless 
the  lessee  shall  pay  for  the  further  delay  at  the  rate  of  one  dollar 
per  acre  at  or  before  the  end  of  each  year  thereafter."      Tt  was 
held  that  the  lease  constituted  an  entire  contract,  and  that  the 
consideration  recited  in  it  supported  both  the  grant  of  the  two 
years'  term  and  the  privilege  of  extending  the  time  for  drilling 
by  paying  the  stipulated  price  therefor."'     The  payment  of  one 
dollar,  and  the  erection  of  valuable  machineiy  on  the  demised 
premises,  has  been  held  to  l>e  a  sufficient  consideration  for  a 
lease.""     Wliere  the  lease  required  the  lessee  to  commence  a  test 

04  Eclipse  Oil  Co.  v.  South  Penn.  97  Bannford   v.   Lehigh    Zinc   and 

Oil  Co..  supra.  Iron  Co.,  33  Fed.  Rep.  677. 

95  Federal  Oil  Co.  v.  Western  Oil  98  Allegheny  Oil  Co.  v.  Snyder,  106 
Co..  112  Fed.  Rep.  373.  Fed.  Rep.  764;  45  C.  C.  A.  604. 

96  Brown  v.   Fowler,   65   Ohio   St.  99  Herrington  v.  Wood,  6  Ohio  C. 
507;  63  N.  E.  Rep.  76.  C.  Rep.  326;  3  Ohio  Cir.  Dec.  475. 


86  OIL    AND    GAS. 

well  on  the  premises  within  a  certain  time,  and  tliis  require- 
ment was  complied  witli,  it  was  held  that  the^'e  was  a  sufficient 
consideration  for  sucli  lease. ^"^ 

"  A  person  or  company  purposing  to  obtain  natural  gas  in 
large  quantity  for  sale  or  for  manufacturing  pur}X)ses,  finds  it 
desirable  to  acquire  exclusive  right  to  search  for  the  fugitive 
mineral  in  a  laree  contiguous  area  or  areas :  and  thouah  it  be 
not  necessary  for  the  proper  development  of  a  particular  well 
or  to  drill  wells  upon  the  land  of  all  the  several  proprietors 
within  the  district,  it  is  desirable  and  profitable  to  have  no 
comi>eting  w'ells  on  the  territory  near  to  the  wells  deemed  suffi- 
cient for  the  development  of  the  territory.  This  accounts  for 
and  leads  to  the  insertion  in  contracts  made  between  such  pros- 
pectors and  the  land  o-vvners  of  provisions  for  exclusive  rights, 
and  stipulations  forbidding  the  land  owners  from  drilling  wells 
upon  their  own  land  or  permitting  others  to  do  so ;  also,  along 
witli  a  provision  for  an  exclusive  right,  it  is  common  t»  insert 
a  stipulation  for  the  privilege  of  delay  in  drilling  wells,  upon 
a  specified  consideration.  Such  provisions  constitute  valuable 
considerations  in  these  contracts."^"^ 

§67.     Option  to  purchase  after  development. 

A  lease  provided  that  ^'  after  the  first  well  is  completed,  pro- 
vided it  is  a  paying  well,  said  second  party  shall  have  tlie  privi- 
lege of  buying  or  leasing  tbe  remainder  of  said  Schuler  farm, 
provided  he  and  said  Schuler  can  agree  upon  the  terms  Avithin 
six  months."  The  court  did  not  consider  this  was  an  option  in 
the  ordinary  sense  of  the  term,  nor  an  offer  to  tiie  lessee  of  the 
remainder  of  the  farm  upon  defined  terms,  either  of  purchase 
or  of  lease  on  royalty,  by  the  acceptance  of  which  he  could  be- 
come either  a  purchaser  or  a  lessee.'"' 

100  Stahl    V.   Van   Vleck,    53   Ohio  dum     plause,     a     condition     subse- 

Rt.  136;  41  N.  E.  Rep.  35;  33  Wkly.  quent,   and   a    surrender  clause,    ap- 

L.  Bull.  335.  plies  to  the  whole  lease,  and  to  each 

i"i  Simpson     v.     Pittsburjjh,     etc.,  clause   of   it.     Brown   v.   Fowler,   65 

Co..    28    Ind.    App.    343;    62    N.    E.  Ohio  St.  507;  63  N.  E.  Rep.  76. 

Rep.   753.  io2Childs    v.    Gillespie,    147    Pa. 

The  consideration  of  an  oil   lease  St.   173;   23  S.  E.  Kep.  312. 

having  a   ffrantins;  clause,   a    hah.'ii-  ^^'here  the  lessee  served  notice  of 


LEASES.  87 

^68.     Option  to  extend  lease. 

A  lease,  given  for  five  years,  required  the  lessee  to  drill  a 
Avell  within  six  months,  or  in  default  pay  for  further  delay  an 
annual  rental  in  advance,  until  a  well  should  be  completed. 
For  a  failure  to  complete  the  well  or  pay  the  rental  for  ten  days 
after  the  time  specified,  the  lease  should  be  void,  only  to  be  re- 
newed by  mutual  consent;  and  "  no  right  of  action  should  after 
such  failure  accrue  to  either  party  on  account  of  the  breach  of 
any  condition  "  in  the  lease.  The  lease  was  construed  to  give 
the  lessee  an  option  to  put  down  a  well  within  six  months,  and 
by  paying  the  rental  named,  the  further  option  for  one  year.^"^ 
Where  it  is  optional  with  the  lessee  whether  he  will  take  the 
land  or  not  at  the  end  of  the  year,  and  the  lessor  represents  to 
the  lessee  he  would  extend  the  time,  and,  on  the  faith  of  such 
representations,  the  lessee  goes  on  and  expends  moneys,  and  car- 
ries out  his  part  of  the  contract,  the  lessor  will  be  bound ;  and  if 
the  property  is  community  property,  representations  of  the  les- 
sor's husband  to  the  same  effect,  followed  by  the  expenditure  of 
money  and  carrying  out  the  provisions  of  the  lease,  will  bind 
the  wife.^'-' 

§69.     Acceptance  of  second  lease  by  lessee  of  first  lease. 

If  a  lessee  is  improperly  refused  possession  by  tlie  lessor,  and 
assenting  to  this  refusal  he  accepts  a  second  lease  for  the  same 
premises,  tlie  act  of  executing  and  accepting  the  second  lease 
amounts  to  a  rescinding  of  the  first  one  and  terminates  all  rights 
under  it.  And  an  assignee  of  the  first  lease,  who  took  it  with 
notice  of  the  execution  of  the  second  lease,  is  bound  by  the  re- 
sult, even  though  he  expend  large  siims  of  money  in  developing 

an    intention    to    exercise   his    right  of  purchase  was  not  completed  when 

of  purchase  and  take  the  premises,  the    option    to    purchase    was    exer- 

and  a  deed  was  then  prepared  but  cised.     FHynn  v.  \^Tiite  Breast  Coal 

not  delivered  for  three  months,  be-  Co..  72  la.  738;  32  N.  W.  Rep.  471. 

cause  of  failure  of  the  lessee  to  pay  io3  VanVoorhis       v.       Oliver,      22 

the    purchase    money,    it    was    held  Pittsb.  L.  J.    (N.  S.)    114. 

that    the    lessee   must   pay    for    the  io4  Presidio  Mining  Co.  v.  BuUis, 

coal  he  had  mined  during  the  three  68  Tex.  581;  4  S.  W.  Rep.  860. 
months   of   delay,    for   the    contract 


88  OIL    AXn    GAS. 

the  jDremises  before  finding  out  that  the  lessor  is  treating  such 
assignee's  possession  as  one  under  the  second  lease  which  he 
had  never  seen.  A  mere  rumor  that  the  lease  has  been  assigned 
is  not  sufficient  to  affect  the  lessor ;  but  a  communication  made 
directly  to  him  by  either  the  lessee  or  assignee  of  the  assignee's 
understanding  of  his  right  of  possession,  will  require  him  to 
act  and  be  binding  upon  him.^°^ 

§70.     Extension  of  time  of  lease  may  amount  to  a  new  lease. 

The  extension  of  the  time  of  a  lease  may  amount  to  a  new 
lease.  Thus  where  an  oil  lease  was  for  a  term  of  five  years 
and  as  much  longer  as  oil  or  gas  was  found  or  produced  in  pay- 
ing quantities,  the  consideration  being  one-eighth  of  all  the  oil 
produced  or  found  on  the  premises,  delivered  free  of  ex|>ensc 
in  the  tanks  or  pipe  lines  to  the  credit  of  the  lessor;  and  if  gas 
was  found  in  sufficient  quantity  to  justify  marketing  it,  then  the 
consideration  was  a  royalty  of  one  hundred  dollars  a  year  for 
each  well,  so  long  as  gas  was  used  from  it;  and  a  well  was  to  be 
completed  within  nine  months,  and  in  case  of  failure  to  do  so, 
the  lessee  was  to  pay  a  yearly  rental  of  fifty  cents  per  acre,  and 
it  was  conditioned  that  a  failure  to  drill  the  well  on  time  or  pay 
the  rent  should  render  the  lease  "  null  and  void,"  and  to  remain 
"  without  any  effect  between  the  parties  "  ;  and  neither  posses- 
sion was  taken  nor  work  commenced  within  the  five  years,  it  was 
held  that  the  lease  terminated  after  the  expiration  of  five 
years,  as  no  gas  or  oil  was  produced  within  that  time,  and  any 
extension  of  time  after  the  expiration  of  the  five  years  was  in 
effect  the  execution  of  a  new  lease.^°^ 

§71.     Options. —  Revocation. 

Options  concerning  oil  or  gas  territory  in  the  past  have  not 
been  uncommon,  much  to  the  detriment  of  the  owner  of  such 
territory.      An  option  as  applied  to  oil  or  gas  territory,  is  an 

105  Natural  Gas  Co.  v.  Philadel-  N.  E.  Eep.  77;  41  \Yk\j.  L.  Bull, 
phia  Co.,  1,58  Pa.  St.  .317;  27  Atl.  48.  See  Biven  v.  Ohio  Oil  Co.,  11 
Rep.  n,51.  Ohio  C.  C.  Dec.  810;   21  Ohio  C.  C. 

106  Northwestern  Ohio.  etc..  Co.  V.  117;  affirmed  65  Ohio  St.  507;  63 
City  of  Tiffin,  59  Ohio  St.  420;   54  N.  E.  Rep.  76. 


1. EASES. 


89 


offer  Avhicli  has  not  been  accepted,  containing  the  terms  and 
conditions  on  whidi  the  person  making  it  will  sell  or  lease  his 
premises,  and  giving  the  holder  of  it,  or  the  i^erson  to  whom 
it  is  made,  a  specified  time  within  Avhich  to  elect  to  accept  it. 
The  holder  of  the  option  is  nnder  no  obligation  to  accept  it,  but 
if  he  elects  to  do  so  he  must  give  the  person  making  it  notice  of 
that  fact.     After  notice  given  of  an  election  to  accept  the  offer, 
it  becomes  a  valid  and  binding  contract.     But  the  acceptance 
must  be  made  within  the  time  fixed ;  for  after  that  time  has  ex- 
pired the  owner  of  the  premises  is  no  longer  bound  by  his  offer, 
and  the  option  is  at  an  end.'°'      Thus  where  the  owner  of  land 
entered  into  an  agreement  providing  that  A  should  "  have  the 
right  to  enter  upon  the  premises     .      .      .     wnth   men,  teams, 
and  tools  for  the  purpose  of  prospecting  and  examining  for 
mines  and  minerals,  and  to  dig,  carry  away,  and  test  such  por- 
tions," etc.,  "  as  he  may  think  proper,"     ..."  and  if  he, 
after  making  such  examination   and   test,"   etc.,    "  shall  be  of 
opinion  that  they  are  worth  working,   he  shall  then  have  the 
right  to  go  on  and  dig,  carry  away,  and  cause  to  be  worked  such 
of  the  substances  there  found,"  tlie  exjienses  to  be  borne  by  A ; 
it  was  held  that  the  instrument  conveyed  no  title  to  the  land  to 
A,  but  gave  him  a  license  or  authority  to  enter  upon  the  lands 
for  the  specific  purpose  of  prospecting  for  minerals,  and  of  ex- 
tracting the  ores,  and  if  he  considered  them  worth  working,  he 
had  an  option  he   could   enforce.     However,  before  he   could 
acquire  an  interest  in  the  land,  he  had  to  declare  his  election 
to  exercise  his  option  ;  when  he  had  done  that  he  would  be  in  a 
position  to  compel   a  conveyance.      Until  he  had  declared  his 
election,  he  had  a  mere  license,  which  was  a  personal  privilege 
only  and  not  assignable  or  transmissible.     The  agreement  by  its 
terms  was  binding  on  the  land  owners,  "  heirs  and  assigns  of  ihe 
respective    parties."      The   owner   sold   the   land.      For   twenty 
vears  A  visited  the  land  and  did  some  prospecting,  but  nothing 
more.      At  the  end  of  ten  years  the  owner  sold  the  land.      It 
was  held  that  A  w^as  bound  to  declare  his  position  towards  the 
owner  of  the  land   as  soon  as  it  was  fairly  possible.      "  Fair 

107  McMillan  v.  Philadelphia   Co.,       Barrett   v.    ^McAllister,    33    W.    Va. 
159  Pa.  St.   142;   28  Atl.  Rep.  220;        738;   11  S.  E.  Rep.  220. 


90  OIL    AND    GAS. 

dealing,"  said  the  court,  ^'  required  of  him  to  take  the  requisite 
steps,  under  this  agreement,  within  a  reasonable  time.  Xo  time 
hcing  specitied  in  the  instrument,  the  law  alHxed  to  it  tlic  obli- 
gation of  proceeding  witliin  what  would  be  deemed  a  reasonable 
time,"  As  the  owner  had  a  right  to  revoke  the  license,  and  A 
had  failed  to  declare  his  position  with  reference  to  the  land,  the 
court  considered  the  conveyance  a  revocation  of  the  license.^"^ 
Where  the  instrument  was  to  run  ninety-nine  years  and  was  of 
the  "  mineral  and  petroleum  interests  "  in  the  land,  the  so- 
called  lessees  to  pay  "  one-tenth  part  of  the  net  profits  of  what- 
ever may  be  discovered  and  worked  in  and  ujwn  said  lands 
deemed  admissible  to  be  tested  and  worked,"  and  the  lessees 
agreed  "  to  commence  testing  said  property  within  three  years' 
time,"  it  was  held  that  the  lessee  was  under  no  obligation  to 
commence  work  unless  he  deemed  it  advisable,  that  there  was  no 
consideration  for  the  instniment,  and  therefore  it  was  void ; 
and  that  it  was  a  mere  option.^"^  Where  a  lease  provided  if  oil 
or  ffas  were  found  the  lessee  should  have  the  refusal  for  three 
months  of  a  lease  of  an  adjoining  tract,  on  terms  "  that  may  be 
equal  to  the  best  terms  offered  by  any  other  person  or  persons 
therefor,"  it  was  held  that  this  option  passed  with  an  assign- 
ment of  the  lease,  even  though  the  lease  was  not  assignable,  the 
lessor  having  entered  into  a  new  agreement  with  the  assignee,  es- 
pecially providing  for  a  continuance  of  the  covenants  of  the  lease 
unmodified. ^^^  An  option  without  any  consideration  for  it, 
may  be  withdrawn  at  any  time  before  its  acceptance.^"  A  so- 
called  lease,  not  binding  on  the  lessee  to  carry  out  its  covenants, 
but  reserving  to  him  the  right  to  defeat  it  at  any  time,  and 
relieve  himself  from  the  payment  of  any  consideration  for  it, 
is  invalid  to  create  any  estate  except  a  mere  oyrtional  right  of 
entry,  w^hich  can  be  terminated  by  either  party  at  his  will,  and 
which  the  death  of  the  lessor  does  terminate.^^^     A  lease  pro- 

losCahoon  v.   Bayaiid,   123  N.  Y.  "oGuffey  v.   Clever,    146   Pa.   St. 

298;   25  N.  E.  Rep.  .376.  548;    23    Atl.    Rep.    161. 

109  Petroleum    Co.    v.    Coal,    etc.,  mSnow  v.  Nelson,  113  Fed.  Rep. 

Co..   89   Tenn.   381;    18   S.   W.   Rep.  3.53. 

65;    Snodgras.s   v.    South   Penn.   Oil  112  Trees    v.    Eclipse    Oil    Co.,    47 

Co.,  47   VV.  Va.  509;   35  S.   E.  Rep.  W.    Va.    107;    .34    S.    E.    Rep.    933; 

:820.  Steelsmith    v.    Gartlan,    45    VV.    Va. 


LEASES. 


91 


vided  that  it  should  become  null  and  void,  and  all  rights  under 
it  should  cease  and  determine,  unless  a  well  should  be  completed 
on  the  premises  within  one  month  from  the  date  thereof,  or  un- 
less the  lessee  should  pay  at  tlie  rate  of  one  hundred  dollars 
monthly,  in  advance,  for  each  additional  month  such  completion 
was  delayed,  from  the  time  mentioned  for  the  completion  of  the 
well,  until  a  well  was  completed.  It  was  held  that  this  was  a 
mere  option,  revocable  at  the  pleasure  of  the  lessee."'  Where 
a  lease  contained  a  clause  that  at  the  end  of  the  term  the  lessee 
might  have  the  right  to  purchase  the  leased  premises,  this  was 
held  to  give  the  assignee  of  the  lease  the  right  to  make  tlie  pur- 
chase."' 

^72.     Options  continued. 

As  a  rule  time  is  of  the  essence  of  an  option,  as  is  well  illus- 
trated by  an  agreement  providing  that  the  prospective  pur- 
chaser should  "  have  the  refusal  ten  days  from  date  " ;  and  it 
was  held  that  the  purchaser  must  exercise  his  option  within 
tliat  time  by  a  declaration  of  an  intention  to  purchase,  although 
it  was  not  necessary  to  complete  the  purchase  within  that 
time."^  In  si^eaking  of  options  on  oil  or  gas  lands,  the  Su- 
preme Court  of  the  United  States  used  this  language:  "  The 
fluctuating  character  and  value  of  this  character  of  property  is 
remarkably  illustrated  in  the  history  of  the  production  of  min- 
eral oil  from  wells.  Proix^rty  worth  thousands  today  is  worth 
nothing  tomorrow ;  and  that  which  we  today  sell  for  a  thousand 
dollars  as  its  fair  value,  may  by  the  natural  changes  of  a  week, 
or  the  energy  and  courage  of  desperate  enterprise,  in  the  same 
time,  be  made  to  yield  that  much  every  day.  The  injustice, 
therefore,  is  obvious  of  permitting  one  holding  the  right  to  as- 
sert an  ownership  in  such  property  to  voluntarily  await  the 
event,  and  then  decide,  when  the  danger  which  is  over  had  been 

27;   29  S.  E.  Rep.  978;  44  L.  R.  A.  n*  Xapier    v.    Darlington,    70   Pa. 

107.  St.  64. 

113  Glasgow  V.  Griffith,  22  Pittsb.  ns  Smith's  Appeal,  69  Pa.  St.  4/4. 

L.  J.    (N.   S.)    181.  See  Flynn  v.  White  Brenst  Coal  Co., 

72  la.  7.38:   32  N.  W.  Rep.  471. 


92  OIL    AND    GAS. 

at  the  risk  of  another,  to  come  in  and  share  the  profit.  While 
a  iniich  longer  time  might  be  allowed  to  assert  this  right  in  re- 
gard to  real  estate  whose  value  is  fixed,  on  which  no  outlay  is 
made  for  improvement,  and  but  little  change  in  value,  the  class 
of  property  here  considered,  subject  to  the  most  rapid,  frequent 
and  violent  fluctuations  in  value  of  anything  known  as  property, 
requires  prompt  action  in  all  who  hold  an  option,  whether  they 
will  share  its  risks  or  stand  clear  of  them."  ^^"^  One  who  pur- 
chases land,  with  knowledge  that  another  holds  an  option  upon 
it,  takes  it  subject  to  the  right  of  the  person  holding  such  option, 
and  he  holds  it  in  trust  for  him.  The  }x?rson  having  the  option 
may  follow  the  land  and  compel  such  purchaser  to  execute  to 
him  a  lease  or  a  deed  of  conveyance,  as  the  option  may  provide ; 
or  he  may,  in  case  of  an  option  to  purchase,  compel  the  original 
owner  to  pay  him  what  he  had  agreed  to  take  for  the  land,  and 
have  a  decree  to  sell  it  in  order  to  satisfy  his  claim.  Of 
course,  both  the  original  owner  and  purchaser  are  necessary 
parties  to  the  suit."^  Where  lands  and  the  oil  and  gas  in  it 
were  let,  demised  and  granted  for  the  purpose  and  with  the  ex- 
clusive right  to  drill  and  operate  for  oil  and  gas  for  five  years, 
and  as  much  longer  as  oil  and  gas  should  be  found  in  paying 
quantities,  the  consideration  being  one  dollar  and  a  promise  to 
pay  certain  rentals  for  further  delay  if  default  should  be  made 
in  drilling  a  test  well  within  a  year ;  and  there  was  a  provision 
in  the  lease  that  a  failure  to  drill  the  well  or  pay  the  rent  should 
render  it  void  both  as  to  lessor  and  lessee,  it  was  held  this  was 
more  than  an  option  or  license,  being  a  lease  of  the  land,  oil  and 
gas  for  the  time  and  purposes  specified. ^^® 

lie  Twin-Lick  Oil  Co.  v.  Marbuiy.  us  Woodland  Oil  Co.  v.  Crawford, 

91     U.     S.     587.     See    Johnston    v.  55  Ohio  St.  161 ;  44  N.  E.  Rep.  1093 ; 

Standard    Mining    Co.,     148    U.    S.  .34    L.    R.    A.    62.     See    Monfort    v. 

360;   13  Sup.  Ct.  Rep.  585;  Hoyt  v.  Lanyon    Zinc   Co.    (Kan.),    72    Pac. 

Latham,  143  U.  S.  553;  12  Sup.  Ct.  Rep.  784. 

Rep.  568;  Hammond  v.  Hopkins,  143  A  nominal   consideration  will  not 

U.  S.  224;   Felix  v.  Patrick;   145   U.  prevent  a  so-called  lease  being  con- 

S.  317;   12  Sup  Ct.  Rop.  862.  sidered  an   option.     Eclipse  Oil   Co. 

117  Barrett   v.    McAllister,    33    W.  v.   South   Penn.  Oil  Co.,  47  W.   Va. 

Va.    738;    11    S.    E.    Rep.    220.     See  107;    34   S.   E.   Rep.   923. 

Weaver  v.  Burr,  31   W.  Va.  736;   8  "Contracts  unperformed,  optional 

S.  E.  Rep.   743.  as  to  one  of  the  parties,  are  optional 


LEASES.  93 

§73.     Option  to  pay  rent  or  drill  well. 

As  a  rule  a  lessee  cannot  exercise  an  option  concerning  the 
development  or  working  of  the  premises  to  avoid  the  obligation 
of  a  lease.  This  was  well  illustrated  by  a  case  in  which  the 
lessee  was  to  pay  a  monthly  rental  nntil  a  well  was  completed, 
and  for  a  failure  to  complete  the  well  or  pay  the  rental  the  lease 
was  to  be  absolutely  null  and  void.  It  was  held  that  the  fact 
that  the  lessee  had  the  option  to  drill  the  well  or  not,  or  pay 
the  rental  or  not,  simply  gave  him  the  right  merely  to  elect  to 
drill  the  well  or  to  pay  the  rental,  and  not  to  elect  to  do  neither 
and  merely  suffer  a  forfeiture  of  the  lease."''  Where  the  in- 
strument executed  by  the  o^^mer  of  the  land  and  other  persons 
granted  all  the  oil  and  gas  on  the  land  described,  to  be  paid  for 
by  a  royalty  named,  operations  to  be  commenced  within  two 
years  or  the  instrument  to  be  void ;  but  a  forfeiture  might  be 
averted  from  year  to  year  thereafter  by  paying  one  hundred 
dollars  in  advance ;  it  was  held  that  the  contract  could  not  be 
regarded  as  a  sale,  to  be  defeated  on  condition  subsequent,  for 
the  reason  that  the  real  consideration  was  for  the  development 
of  the  property ;  and  as  no  definite  time  was  fixed  for  its  devel- 
opment, and  it  being  requisite  to  an  option  that  tJiere  be  some 
time  for  performance,  the  owner  might  rescind  the  contract,  in 
the  absence  of  any  equities  owing  to  any  work  having  been 
begun  by  such  other  persons.^"** 

§74.     Appurtenances,  what  will  pass  as  such. 

"  A  conveyance  of  one  acre  of  land  can  never  be  made,  by 
legal  construction,  to  carry  another  acre  by  way  of  incident  or 
appurtenant  to  the  first"  ^"^     i^or  can  one  tract  be  so  appur- 

as  to  both."     Steelsmith  v.  Gartlan,  120  National    Oil    and    Pipe    Line 

45  W.  Va.  27;   29  S.  E.  Rep.  978;  Co.  v.  Teel    (Tex.  Civ.  App.),  67  S. 

44  L.  R.  A.  107.     See  Presidio  Min-  W.   Rep.   54.5. 

in^  Co.  V.  Bellis,  68  Tex.  581;  4  S.  121  Child    v.    Starr,    4    Hill    369; 

W.  Rep.  860.  Trustees   of    School   v.    Schroll.    120 

119  Jackson  v.  O'Hara,  183  Pa.  St.  111.  509;   12  N.  E.  Rep.  243;  Ogden 

233;    38    Atl.     Rep.    624.     But    see  v.  Jennings,  62  N.  Y.  526. 
Monfort  v.  Lenyon  Zinc  Co.  (Kan.), 
72  Pac.  Rep.  784. 


94 


on,    AND    GAS. 


tenant  to  another  as  to  carry  the  latter  with  it  in  case  it  is  con- 
veyed.^'" A  deed  conveying  laud  and  "  all  appurtenances " 
conveys  incorporeal  and  not  corporeal  rights.^"'^  A  grant  of  a 
right  to  drill  for  oil  and  gas  in  a  certain  tract  carries  with  it,  as 
appurtenant  thereto,  a  right  of  ingress  and  egress,  and  space- 
enough  to  operate,  to  store  oil,  and  necessary  pipe  lines  to  carry 
away  the  oil  and  gas.^^* 

§75.     Statute  of  Frauds. 

A  few  decisions  may  be  stated  involving  the  Statute  of  Frauds 
without  a  discussion  of  any  particular  rule.  Thus  a  lessor  may 
by  parol  release  the  lessee  from  the  payment  of  a  royalty  or 
rent.^"^  A  parol  agreement  between  a  lessee  and  a  well  driller, 
to  put  down  a  well,  for  an  interest  in  the  oil  obtained  is  valid.'"** 
So  is  parol  agreement  between  land  owners  not  to  drill  within  a 
certain  distance  of  the  boundary  line  between  their  respective 
tracts  of  land ;  '"^  and  likewise  a  parol  agreement  to  locate  a 
mine  and  share  the  expense  of  locating  and  developing  it ;  ''"®  or 
that  a  mine  should  be  worked  on  the  shares.''^  An  oral  agree- 
•ment  to  deliver  a  certain  share  of  oil  to  be  produced  from  land, 
when  put  in  a  tank,  is  an  agreement  to  give  an  interest  in  land, 
and  is  within  the  statute.^'"' 


122  Humphreys  v.  McKissoclc,  140 
U.  S.  304;  11  Sup.  Ct.  Rep.  779; 
Grover  v.  Howard^  31  Me.  546. 

i23Hofer's  Appeal,  116  Pa.  St. 
360;    9   Atl.   Rep.  441. 

i24Dietz  V.  Mission  Transfer  Co., 
95  Cal.  92;  30  Pac.  Rep.  380. 

A  grant  of  a  lower  vein  of  coal 
carries  with  it,  as  appurtenant 
thereto,  the  right  to  pass  through 
the  upper  vein.  Chartiers  Block 
Coal  Co.  V.  Mellon,  152  Pa.  St.  286; 
25  Atl.  Rep.  597;  18  L.  R.  A.  702. 

A  side  track,  used  in  operating  a 
mine,  passes  with  a  lease  of  the 
mine,  as  appurtenant  thereto.  Con- 
solidated Coal  Co.  V.  Savitz,  57  111. 
App.  659. 


125  Crawford  v.  Bellvere,  etc.,  Gas 
Co.,  183  Pa.  St.  227;  38  Atl.  Rep. 
595;  Nilson  v.  Goldstein,  152  Pa.  St. 
493;  25  Atl.  Rep.  493. 

i2cHaight  V.  Conners,  (Pa.  St.)  ; 
24  Atl.  Rep.  302. 

127  Ware  v.  Longmade,  9  Ohio  C, 
Ct.  Rep.  85. 

i28Moritz  V.  Lovelle,  77  Cal.  10; 
18  Pac.  Rep.  803. 

i29Hudepohl  v.  Libert,  etc.,  Co., 
80  Cal.  553;   22  Pac.  Rep.  339. 

isoLithgow  V.  Shook,  39  Ohio 
Wkly.  L.  Bull.  39.  See  Heller  v. 
Dailey,  28  Ind.  App.  555;  63  N.  E. 
Rep.  490. 


l.EASES.  95 

§76.     Description  of  leased  premises. 

Parol  evidence  is  not  admissible  to  vary  a  definite  descrip- 
tion contained  in  a  lease,  or  to  show  that  it  was  the  intention  to 
cover  another  tract.^^'  "  In  the  description  of  real  estate  in  a 
written  instrument  the  land  must  be  so  far  described  that  it  may 
be  identified  without  resort  to  parol  evidence.  In  such  casi  , 
if  an  officer  is  unable  to  locate  the  land  without  tlio  exerci>i 
of  an  arbitrary  discretion,  the  description  is  insufficient.''  In 
the  case  from  which  this  quotation  is  made  the  lease  was  of 
"  one  tract  of  land,  cacli  twenty  feet  square  of  the  following  real 
estate,  towit :  All  that  part  of  W.  i/o,  N.  E.  i/4,  Sec.  24,  town 
23  north,  range  5  east,  wliich  lies  south  and  west  of  Wild  Cat 
Creek,  containing  in  all  thirty-two  acres,  one  of  said  twenty- 
foot  tracts  being  eight  rods  south  and  fifteen  east  of  northwest 
corner  of  the  above  described  tract."  It  was  held  that  this 
descri])tion  was  void  for  insufficiency,  even  admitting  that  the 
word  "  rods  "  should  be  supplied  after  the  word  "  fifteen  " ; 
for  it  was  manifest  that  every  part  of  the  square  could  not  be 
eight  rods  south  and  fifteen  rods  east  of  the  northwest  corner 
of  the  whole  tract;  and  the  description  failed  to  state  what  part 
of  it  is  so  situated. ^^"  But  a  lease  of  a  large  tract,  only  a  part 
of  it  to  be  operated,  which  part  the  lessor  is  to  designate,  is  not 
void ;  and  the  lessor  may  sue  on  the  covenants  of  the  lease,  al- 
though he  has  not  designated  the  part  to  be  occupied  by  the 
lessee  because  he  refused  to  allow  him  to  do  so,  if  he  has  been 
ready  to  point  them  out  to  such  lessee,  and  so  avers  in  his  com- 
plaint.^^^  A  description  in  a  lease  of  a  tract  of  land  twenty 
feet  square  "  situated  at  the  southeast  corner  of  the  north  half 
of  the  southwest  quarter  "  of  a  certain  quarter  section  of  land 
sufficiently    describes    the    tract    granted."*     The    owner    of 

1^1    DufHeld   V.   Hue,    129   Pa.   St.  Lingeman    v.    Shirk,    15    Ind.    App. 

■94;   18  Atl.  Rep.  566.  432;   43   N.   E.   Hep.  33;    Cheney   v. 

132  Diamond  Plate  Glass  Co.  v.  Cook,  7  Wis.  357;  Washburn  v. 
Tennell.  22  Ind.  App.  132;  52  N.  E.  Fletcher,  42  Wis.  152;  Roehl  v.  Hau- 
Kep.   168.  messer,  114  Ind.  311;  15  N.  E.  Rep. 

133  Indianapolis  Natural   Gas   Co.  345. 

V.  Spaugh,  17  Ind.  App.  683;  46  N.  i34  Simpson    v.    Pittsburgh,    etc., 

E.  Rep.  691.  See  Stahl  v.  Van  Vleck,       Co..  28  Ind.  App.  343;  62  N.  E.  Rep. 
53  Ohio  St.  136;  41  N.  E.  Rep.  35;       753. 


96  on.    AA'D    GAS. 

three  forty-acre  and  adjoining  tracts  leased  one  acre,  to 
be  selected  by  himself;  and  in  the  lease  it  was  "agreed  on 
the  party  of  the  first  part  that  if  oil  or  gas  be  obtained  by  the 
second  party  or  assigns  .  .  .  upon  said  tract,  or  on  lands 
adjoining  the  same  premises  of  which  the  foregoing  one  acre 
described  embraces  a  part,  said  second  party  shall  have  the 
right  to  operate  acres  of  the  balance  of  said  premises  on  the 
same  terms  as  above."  It  was  held  that  the  forty-acre  tract  in 
which  tlie  one  acre,  after  the  lease  had  been  executed,  had  been 
selected  by  the  lessor,  was  the  forty  acres  to  be  operated  under 
the  contract. ^''^ 

§77.     Right  of  lessor  to  use  surface. 

A  lease  of  a  tract  of  land  for  oil  or  gas  purposes  does  not 
necessarily  exclude  the  lessor  from  using  or  cultivating  its  sur- 
face, if  he  does  not  interfere  with  the  operations  of  the  lessee. 
Usually  the  lessee  is  given  possession  of  so  much  of  the  surface 
surrounding  the  well  or  wells,  with  ingress  and  egress,  as  will 
enable  him  to  drill  and  oi^erate  them,  with  a  right  to  storage 
and  ways  to  lay  pipe  lines ;  and  the  remainder  of  the  surface 
is  resented  for  the  use  of  the  lessor.  Or  the  lessee  may  be  re- 
stricted in  his  operations  to  a  certain  described  tract,  carved  out 
of  a  larger  tract,  although  the  right  to  take  the  oil  or  gas  under 
sudi  larger  tract  is  unqualifiedly  given  him.  An  instance  of 
this  kind  came  before  the  Supreme  Court  of  the  United  States. 
An  owner  of  forty  acres  gave  a  lease  on  it  "  for  tlie  sole  and 
only  purpose  of  boring,  mining,  and  excavating  for  petroleum 
or  carbon  oil  and  gas,  and  piping  of  oil  and  gas,"  "  excepting 
reserved  therefrom  ten  acres,"  for  two  years,  or  as  long  as  gas 
should  be  found  in  paying  quantities.  He  was  to  receive  one- 
eighth  of  the  oil  produced,  and  two  hundred  dollars  per  annum 
for  each  gas  well  drilled.  The  lessor  reserved  the  right  to 
"  fully  use  and  enjoy  the  said  premises  for  the  purpose  of 
tillage,  except  such  parts  as  may  be  necessary  for  said  mining 
purposes,  and  a  right  of  way  to  and  from  the  place  or  places 
of  said  mining  or  excavating."     Tn  construing  the  lease,  the 

i35Stahl   V.   Van   Vleck,   53   Ohio  St.  136;  41  N.  E.  Rep.  35. 


I.EASES.  i)7 

court  said :  "  The  subject  of  tlie  graut  was  not  the  lands,  cer- 
tainly not  the  surface.  All  of  that,  except  the  portions  actually 
necessary  for  operating  purposes  and  the  easement  of  ingi'ess 
and  egress,  was  expressly  reserved  to  Taylor,  The  real  sub- 
ject of  the  grant  was  the  gas  and  oil  contained  in  or  obtainable 
from  the  land,  or  rather  the  right  to  take  possession  of  the  gas 
and  oil  by  mining  and  boring  for  the  same."  Of  course,  the 
lease  gave  all  the  oil  and  gas  under  the  entire  forty  acres.'^*^ 
In  another  case,  where  the  lease  specified  that  no  wells  were  to 
be  drilled  within  three  hundred  yards  of  a  certain  building  on 
the  leased  tract,  and  the  lessor  had  undertaken  to  lease  this 
three  hundred  yards  to  a  third  party,  the  court  said :  "  The 
well  which  res]xmdent  proposes  to  bore  is  within  this  prohibited 
distance;  and  the  respondents  claim  that  Brown,  and  they  as 
his  lessees,  have  the  right  to  drill  wells  within  that  part  of  the 
territory.  But  the  clause  in  question  is  neither  a  reservation 
nor  an  exception  as  to  the  land,  but  a  limitation  as  to  the  privi- 
lege granted.  It  does  not,  in  any  way  diminish  the  area  of  the 
land  leased  —  that  is  still  the  whole  tract;  but  it  restricts  the 
operations  of  the  lessees  in  putting  down  wells  to  the  portion 
outside  of  the  prohibited  distance.  For  right  of  way  and  other 
purposes  of  the  lease,  excepting  the  location  of  wells,  tbe  space 
inside  the  stipulated  line  is  as  much  leased  to  the  lessee  as  any 
other  part  of  the  tract.  The  terms  of  the  grant  would  imply 
the  reservation  to  the  lessor  of  the  possession  of  the  soil  for  pur- 
poses other  than  those  granted  to  the  lessee,  and  the  parties  have 
expressed  what  otherwise  would  have  been  implied  by  the  provi- 
sion that  the  lessor  is  to  fully  use  and  enjoy  the  said  premises 
for  the  purpose  of  tillage,  except  such  part  as  shall  be  necessary 
for  said  operating  purposes."  ^^^ 

1-6  Brown  v.   SpilmaTi,   155   U.   S.  cupy  enough  territory  t»  enable  him 

665;    15  Sup.  Ct.  Rep.  245;   revers-  to   drill   and   operate  a  well  or  the 

ing  45  Fed.   Rep.  291.  necessary   wells.      Wardell   v.    Wat- 

137  Westmoreland,  etc.,  Co.  v.  De-  son.  93  Mo.  107;  5  S.  W.  Rep.  605. 

Witt,  130  Pa.  St.  235;  18  Atl.  Rep.  The   word   "surface"  used   in  an 

724;  29  Amer.  L.  Reg.  93;  5  L.  R.  A-  oil   lease  means  that  portion  of  the 

731.     See  Funk  v.  Haldeman,  53  Pa.  land    which    is   or   may   be   used   for 

St.   229";    Barker   v.   Dale.   3   Pittsb.  agricultural   purposes.     Williams  v. 

190.  South   Penn.  Oil   Co.    (W.  Va.),  43 

The   lessee   has   the    right   to   oc-  S.  E.  Rep.  214. 


DS  oil-    AA'D    GAS. 

§78.     Construction. 

In  a  celebrated  oil  case  it  was  said  with  reference  to  the  rnle 
to  be  applied  to  the  construction  of  oil  leases  that  '"  Such  leases 
are  construed  most  strictly  against  the  lessee,  and  favorable  to 
the  lessor."  ^^^  ''  When  a  lease  provides  the  mode,  manner, 
iind  character  of  search  to  be  made,  implications  in  regard 
thereto  are  excluded  thereby  as  repugnant.  And  the  demise 
for  the  purpose  of  operating  for  oil  and  gas  for  the  period  of 
five  years  is  dependent  upon  the  discovery  of  oil  and  gas  in  the 
search  provided  for,  if  such  search  is  unsuccessful,  the  demise 
fails  therewith,  as  such  discovery  is  a  condition  precedent  to 
the  continuance  or  vesting  of  the  demise.  The  lessee's  title 
being  inchoate  and  contingent,  both  as  to  the  five-year  limit  and 
time  thereafter,  on  the  finding  of  oil  and  gas  in  paying  quan- 
tities, did  not  become  vested  by  reason  of  his  putting  down  a 
non-productive  well.  This  gave  him  no  new  or  more  extensive 
rights  than  he  enjoyed  before,  but  in  fact  destro^yed  all  his 
rights  under  the  lease."  ^^^ 

"  Generally,  it  is  the  lessee  who  is  favored,  and,  after  a  sub- 
stantial compliance  by  him  with  the  terms  of  the  contract, 
equity  will  not  regard  a  technical  breach.  But,  with  mining 
leases,  it  is  otherwise.  This  is  due  principally,  if  not  entirely, 
to  the  nature  of  the  business  of  mining,  and,  more  specifically, 
oil  mining;  to  the  temptation  offered  the  shrewd  operator  to 
purchase  at  a  nominal  price  the  right  of  developing  the  lands, 
the  owner  of  which  is  iimorant  of  their  real  value  for  any  pur- 
pose, and  then  to  hold  them  indefinitely,  should  it  suit  his  ]uir- 
pose,  neither  working  them  hiivself  nor  ]>ermitting  another  to 
do  so.      Of  course,  it  may  be  said,  in  a  general  way,  that  ]iar- 

i^s  Citinpf  Bettman  v.  Harness,  42  vent    delay    and     unproductiveness. 

W.  Va.  43.3;  21   S.  E.  Rep.  271;  30  Parish  Fork  Oil  Co.  v.  Bridgewater 

L.  R.  A.  566;   Parish   Fork  Oil   Co.  Gas  Co..   51   W.  Va.   583;   42   S.   E. 

V.  Brido^ewater  Gas  Co.,  51  W.  Va.  Rep.  655. 
583;  42  S.  E.  Rep.  655.  If  the  parties  act  upon  interline--- 

3  30  Steelsmith   v.   Gartlan,   45   W.  tions  improperly  made,  the  constrif 

Va.  27;  29  S.  E.  Rep.  978;  44  L.  R.  tion   they  thus   put   upon   the    lens  • 

A.    107.  ^vill     he     adopted     by     the     courts. 

An  oil  lease  will  be  so  construed  Barnsdall    v.    Boley,    119    Fed.    Rep. 

as  to  promote  development  and  pre-  191. 


LEASES.  99 

ties  may  make  any  contract  which  they  desire,  and,  if  a  lessor 
should  by  way  of  lease  make  his  intention  clear  to  grant  the  oil 
and  gas  rights  iqxjn  his  property  for  an  inadequate  considera- 
tion, the  courts  will  enforce  it.  But  the  lessee,  where  the  in- 
stniment  presents  a  semblance  of  inequality  or  unfairness,  will 
find  that  he  has  a  thorny  road  to  travel  before  reaching  a 
judicial  establishment  of  his  claims.  And,  in  the  case  sup- 
posed, the  mere  fact  that  the  instrument  would  seem  to  con- 
template the  equivalent  of  an  absolute  gift  of  valuable  rights 
would  at  once  arouse  the  suspicion  of  a  chancellor,  which,  if 
not  dispelled  by  the  clearest  proof,  would  lead  to  its  prompt 
reforming  or  setting  aside  upon  the  application  of  the  proper 
parties."  "*^  A  lease  must  be  construed  as  a  whole.^'*^  Thus 
the  consideration  of  a  lease  having  a  granting  clause,  a  haben- 
dum clause,  a  condition  subsequent,  and  a  surrender  clause, 
applies  to  the  whole  lease  and  to  each  clause  of  it.*"^ 


§79.     Construction  of  instrument  by  parties. 

In  cases  w^here  the  parties  have  put  a  construction  upon  an 
instrument,  especially  in  instances  of  doubt,  that  construction 
will  be  applied  to  the  instrument  by  the  courts  in  litigation 
arising  between  them  over  tlie  subject  matter  of  the  instrument. 
Thus  where  a  lease  had  been  treated  by  both  parties  to  it  as  a 
lease  at  will,  in  an  action  by  the  lessor  to  rescind,  brought  six- 
teien  months  after  its  commencement,  the  court  held  that  the- 
lessee  was  entitled  to  recover  whatever  his  advancement  exceeded 
the  amount  of  the  royalties  ou  the  ore  taken  out,  applying  to  it 
the  rule  with  respect  to  a  tenancy  at  will,  although  another  con- 
struction Avas  possible.^*" 


140  Bryan    on    Petroleum,    p.    146,  i42  Oglesbys    v.    Hughes,    96    Va. 

quoted  in  Husrgins  v.  Daley,  99  Fed.  115;   30  S.  E.  Rep.  439.     As  to  un- 

Rep.  606;  40  C.  C.  A.  12;  48  L.  R.  authorized   changes   becoming  bind- 

A.  320.  ing,  see  Barnsdall  v.  Boley,  119  Fed, 

1-41  Steelsmith  v.  Gartlan.  supra.  Rep.  191. 

*i4i  Brown  v.  Fowler,  65  Ohio  St. 
507 ;  63  N.  E.  Rep.  76. 


100  OIL    AND    GAS. 

§80.     Unfilled  blanks. —  Written  and  printed  clauses. 

It  is  no  common  occurrence  for  unfilled  blanks  to  be  left  in 
leases,  especially  where  printed  forms  are  used.  Occasionally 
the  lease  for  this  reason  is  so  uncertain  as  to  be  void.  Thus 
where  the  operations  were  to  be  commenced  and  prosecuted  for 
two  years  from  the  date  of  the  lease,  ^'  or  thereafter  pay  to  the 
party  of  the  first  part  $ per ,  until  work  is  com- 
menced," the  lease  was  held  void  for  uncertainty  by  reason  of 
the  unfilled  blanks.  The  lease  otherwise  was  a  hard  one,  and 
the  court  seized  upon  the  uncertainty  to  declare  it  void.""*  If 
an  oil  lease  be  partly  written,  and  an  ambiguity  arise  out  of  the 
inconsistency  between  the  printecj  and  written  parts,  the  latter 
will  control.  This  is  the  rule  Wit]^  respect  to  all  instruments 
that  are  partly  printed  and  partly-.TBh-itten.^**  And  it  is  esper 
pecially  so  where  the  parties  liav6  actea  m  accordance  with  the 
written  stipulations."^                   •  •     ; 

§81.     Execution  of  lease.  \ 

If  a  statute  provide  the  manner  Ql^^form  in  which  a  lease  shall 
be  executed,  it  must  be  followed,  or  else  it  will  be  void.  Thus 
in  Ohio  a  statute  provicles  that  the  signature  of  a  lessor  of  a 
lease  exceeding  three  jea-ts-  roust  ,be  attested  by  two  subscribing 
■witnesses ;  and  und^r  its;  prvvisions'  it  is  held  that  if  there  be 
no  such  attestation,  the  Ifeas^is-^oid."*' 

§82.     Defective  execution  or  acknowledgment. 

A  lessee  cannot  assert  an  imperfect  execution  of  a  lease  to 
escape  the  payment  of  rent  or  royalty ;  nor  the  fact  that  the 
lessor  has  not  used  his  correct  name,  or  had  used  an  assumed 
one."^  And  the  fact  that  the  acknowledgment  is  not  such  as 
to  bind  a  married  woman  making  it  will  not  prevent  her  recover- 
ies Eaton  v.  Wilcox,  42  Hun  61.  Alhripht.   18  Ind.  App.  151;  47  X. 

144  Fort  Oranfre  Oil  Co.  v.  Wich-       E.  Rep.  682. 

man.   17   Ohio   Cir.   Ct.   Rep.   57;    9  i4g  Lang^made  v.  Weaver,  65  Oliin 

Ohio  Cir.  Dec.  650.  St.  17;  60  N.  E.  Rep.  092. 

145  Kokomo    Natural    Gas    Co.    v.  i47  Marmet    Co.   v.    Archibald,    37 

W.  Va.  778;   17  S.  E.  Rep.  290. 


LEASES,  101 

ing  rentals  from  the  lessee  in  an  action  brought  by  her  afcer  the 
lease  had  expired  by  its  own  limitation. "**  If  a  seal  is  required 
in  the  execution  of  a  lease  by  a  corporation  and  one  is  not  used, 
yet  if  the  lessor,  or  its  successors,  accept  rent  or  royalty  under 
the  lease  it  will  be  estopped  to  deny  its  validity."'* 

^83.     Parol  change  of  written  lease. 

A  parol  change  of  a  Avritten  lease  already  executed  is  valid, 
especially  if  it  relates  to  the  consideration  to  be  paid  for  it.^""^ 
If  the  lease  be  altered,  without  the  consent  of  the  lessor,  by 
writing  in  it  additional  conditions ;  and  the  lessor,  with  knowl- 
edge that  the  changes  have  been  made,  make  no  objection,  but 
insist  throughout  the  term  (or  even  a  part  of  it)  on  the  per- 
•formaiice  of  the  contract  by  the  lessee,  and  accept  royalties  or 
rents  thereunder,  such  lessee  will  waive  his  right  to  insist  on 
the  invalidity  of  the  lease  because  of  the  alteration.^^^ 

§84.     Acceptance. —  Estoppel. 

Acceptance  of  a  lease  may  be  shown  by  an  actual  oral  or  writ- 
ten acceptance.  Taking  it  to  the  proper  office,  by  the  lessee, 
and  filing  it  for  recording  is  such  an  act  as  from  which  an  ac- 
ceptance may  be  presumed,  or  from  which  an  inference  of  ac- 
ceptance may  be  drawn.  Entering  ujwn  the  premises  and  be- 
ginning the  performance  of  the  agreements  or  covenants  con- 
tained in  the  lease  is  such  an  act  of  aceeptance  as  will  estop  the 
lessee  from  saying  that  he  had  not  accepted  the  lease.^^'  If  a 
co-lessee  has  signed  the  lease  on  behalf  of  both  not  only  will  such 

i48Kunkle    v.    People's    Gas    Co.,  gus  v.   Whitehead,   89   Pa.   St.    131. 

165  Pa.  St.  133;   30  Atl.  Rep.  719;  See  Vanderlin  v.  Hovis,  152  Pa.  St. 

33  L.  R.  A.  847.  11;   25  Atl.   Rep.  232. 

Reformation     of    acknowledgment  isi  Barnsdall    v.    Boley,    119    Fed. 

under  Pennsylvania  Act  of  May  25,  Rep.  191. 

1879.     P.    L.    149.     Manufacturers',  i52Ahrns  v.  Chartiers  Valley  Gas 

etc..    Co.    V.    Douglass.    130    Pa.    St.  Co.,    188   Pa.   St.  249;    41    Atl.   Rep. 

283;    18  Atl.  Rep.  630.  739;    Grove   v.    Hodges,    55    Pa.    St. 

1*9  Bicknell    v.     Austin,     62     Fed.  504;  Harlan  v.  Logansport.  etc.,  Co., 

Rep.  432.  133   Ind.   323;    32  N.  E.   Rep.   930; 

150  Sargent  v.  Robertson,   17   Ind.  Indianapolis,  etc.,  Co.  v.  Kibbey,  135 

App.  411;   46  N.  E.  Rep.  925;   \Yil-  Ind.  357;  35  N.  E.  Rep.  392. 


•102  OIL    AND    GAS. 

co-lessee  be  estopped  to  deny  lie  had  no  authority  to  sign  for  his 
fellow  lessee,  but  the  latter,  by  accepting  benefits  under  the  lease 
ratifies  the  act  of  the  co-lessee  in  signing  his  name  to  the  lease, 
especially  if  he  knew  at  the  time  it  was  done  that  his  name  had 
been  so  signed/^^  Where  a  lessee  denies  the  execution  of  a 
lease,  a  printed  form,  such  as  the  lessee  generally  uses,  and 
which  is  printed  in  a  book  used  in  an  office  of  public  records, 
cannot  be  put  in  evidence;  nor  can  the  declarations  of  an  al- 
leged agent,  that  he  signed  the  deed  on  behalf  of  the  lessee,  be 
used,  unless  used  to  contradict  the  testimony  of  such  alleged 
agent.' ^■^ 

§85.     Lessee  need  not  sign  lease. —  Deed. 

A  lessee  need  not  sign  the  lease ;  by  the  acceptance  of  it  he  is 
bound  by  all  its  provisions.  "  Nor  is  it  material  that  this  con- 
tract is  not  signed  by  the  grantee.  The  acceptance  of  the  deed 
makes  it  a  contract  in  writing,  binding  upon  the  grantee  just  as 
the  acceptance  by  a  lessee  of  a  lease  in  writing  signied  only  by 
the  lessor  makes  it  a  written  contract  binding  upon  such  lessee ; 
and  suit  can  be  instituted  upon  it,  and  the  same  rights  main- 
tained, as  though  it  were  also  signed  by  the  grantee. "'^^ 

§86.     Separate  owners  giving  joint  lease. 

There  is  nothing  to  prevent  the  owners  of  separate  and  dis- 
tinct tracts  of  land  giving  a  joint  lease  of  their  separate  prem- 
iss Rice  V.  Ege,  42  Fed.  Rep.  661.  lenbeck.  35  N.  Y.  204;  Huff  v.  Nick- 
154  Morris  v.   Guffey,   188  Pa.   St.  erson,  27  Me.  106;  Burbank  v.  Pills- 
534;   41  Atl.  Rep.  731.  bury,  48  N.  H.  475;  Goodwin  v.  Gil- 
135  Schumucker  v.  Sibert,  18  Kan.  bert,  9  Mass.  510;  Harrison  v.  Vree- 
104;    Indianapolis  Natural   Gas  Co.  land,    38   N.   J.   L.    360;    Harlan   v. 
V.   Kibbey,   135  Ind.   357;    35  N.  E.  Logansport    Natural    Gas    Co.,    133 
Rep.    392;    Midland    R.    W.    Co.    v.  Ind.  323 ;  32  N.  E.  Rep.  930. 
Fislier,  125  Ind.   19;   24  N.  E.  Rep.  A  person  wliose  name  is  not  men- 
756;  Ricard  v.  Sanderson,  41  N.  Y.  tioned    in    tbe   body    of   tbe   lease   is 
179;     Atlantic    Dock,     etc.,     Co.     v.  not  a   party  to  it,  nor  bound  by   it 
Leavitt,  54  N.  Y.  35;    13  Am.  Rep.  as   grantor,   altbouijb   he   signs   and 
556;    Rogers   v.    Eagle    Fire   Co.,    9  acknowledges  it  as  his  deed.     Barns- 
Wend.  611,  618;   Spaulding  v.  Hal-  dall  v.  Boley,  119  Fed.  Rep.  191. 


I.EASES.  103 

ises  on  royalty  payable  to  them  jointly ;  and  if  the  lessee  pur- 
chase the  land  of  one  of  them,  he  must  continue  paying  one-half 
the  royalty  to  the  other.'^° 

S87.     Notice  to  one  of  several  lessees. 

0 

A  notice  to  one  of  several  joint  lessees  is  notice  to  all  of  them. 
Thus  where  a  lease  or  grant  was  made  to  four  persons  jointly,  a 
notice  addressed  to  one  of  them  that  the  lease  or  grant  had  ex- 
pired, and  to  keep  off  the  premises,  was  held  a  sufficient  notice 
to  all  of  them.^^^ 

^88.     Second  lease. —  Notice. 

A  person  who  takes  a  lease  on  premises  already  leased,  with 
notice  of  the  first  lease,  takes  it  subject  to  the  rights  of  the  first 
lessee.^^^  Notice  to  the  agent  of  the  second  lessee  is  notice  to 
the  lessee,  if  such  agent  is  employed  by.  such  lessee  in  securing 
leases  for  him.^^**  Where  the  law  partner  of  the  second  lessee, 
on  being  consulted  by  the  lessor,  drew  up  the  lease,  knowing  all 
the  facts,  for  the  express  purpose  of  defeating  the  title  of  the 
holders  of  the  prior  and  unrecorded  lease,  it  was  held  that  such 
lessee  was  chargeable  with  notice  of  the  facts  brought  to  his 
partner's  knowledge  during  the  consultation,  and  he  took  his 

i56Higgins  V.  California,  etc.,  Co.,  isiDetlor  v.  Holland,  57  Ohio  St. 

109    Cal.    304;    41    Pac.    Rep.    1087.  492;   49  N.   E.  Rep.  690;   40  L.   R. 

For  an   instance  of  a   lease   of  two  A.   266;   Baker  v.  Kellogg,  29  Ohio 

separate  tracts   of  this  kind,   made  St.  663. 

by  husband  and  wife,  that  was  held  iss  Thompson  v.  Christie,  138  Pa. 

their    joint    lease,    see    Harness    v.  St.   230;    27   W.  N.   C.   87;    20   Atl. 

Eastern  Oil  Co..  49  W.  Va.  232;  38  Rep.  934;    11   L.  R.  A.   236;   Henne 

S.    E.    Rep.    662.     See    also    North-  v.   South   Penn.   Oil   Co.    (W.   Va.), 

western    Ohio,    etc.,    Co.    v.    Ullery,  43  S.  E.  Rep.  147. 

(Ohio).    67    N.    E.    Rep.    494,    and  In  Ohio  the  lease  must  be  record- 

Wettengel   v.   Gormley.   160  Pa.    St.  ed    or    the    lessee   have   actual    pos- 

5.59;   28  Atl.  Rep.  934;   40  Am.  St.  session  to  put  the  second  lessee  or  a 

Rep.  733.  purchaser     on     his     guard.     North- 

Of   an    instance   of   a    father    and  western,  etc..   Co.  v.  City  of  Tiffin, 

n^inor  son.  see  Swint  v.  McCalmont  59  Ohio  St.  420;  54  N.  E.  Rep.  77. 

Oil    Co..    184    Pa.    St.   202;    38   Atl.  i-'^n  South   Penn.   Oil   Co.   v.   Stone 

Rep.  1021.  (\\.  Va.).  57  S.   E.  Rep.  374. 


104  OIL    AND    GAS. 

lease  subject  to  the  first  lessee's  rigiits.^""  If  the  lessee  does  not 
record  his  lease,  the  drilHng  of  a  well  in  the  vicinity  of  the 
leased  premises,  on  another  farm,  in  fulfillment. of  a  covenant 
with  his  lessor,  will  not  he  notice  to  an  innocent  second  lessee ; 
for  such  an  act  is  not  sufficient  to  put  others  on  notice  of  his  pos- 
session of  the  leased  premises.^*'^  Where  a  statute  required  a 
lessee  or  licensee  to  record  his  oil  or  gas  lease  or  license,  and 
made  its  record  the  only  notice  that  could  be  available  against 
third  persons  acquiring  an  interest  in  the  land  adverse  to  the 
lessee,  unless  the  latter  was  in  actual  possession  ;  it  was  held 
that  a  lease  which  gave  the  lessee  the  sole  right  for  a  term  of 
years  to  drill  and  operate  for  oil  and  gas  upon  the  leased  prem- 
ises, although  not  witnessed  as  the  statute  required  to  constitute 
it  a  legal  lease,  was  still  good  as  a  license,  and  entitled  to  record 
as  such  ;  and  also  good  in  equity  as  an  agreement  to  make  a 
lease;  and  the  record  of  it  was  notice  to  third  persons  of  all 
rights  of  the  lessee  under  it.  It  was  also  said  that  if  the  instru- 
ment was  not  one  entitled  to  record,  then  notice  of  its  contents 
could  not  be  given  to  third  persons  by  recording  it,  but  actual 
knowledge  of  its  provisions  would  be  effectual  to  charge  a  sub- 
sequent lessee  with  notice  of  the  equities  of  the  grantor 
therein.'*'' 

§89.     Agent  of  lessee  may  take  lease  after  forfeiture. 

The  agent  of  a  lessee,  who  has  entered  on  the  leased  premises 
as  such  agent,  may  take  a  lease  from  the  owner  of  such  premises 
after  a  forfeiture  has  been  made  ;  and  if  for  some  reason  his  prin- 
cipal's lease  is  void,  he  may  take  a  lease  of  the  premises  after  it 


160  Thompson  v.  Christie,  supra.  One    wlio    has    actually    read    the 

161  Aye  V.  Philadelphia  Co.,  103  record  of  an  instrument  not  entitled 
Pa.  St.  457;  44  Atl.  Pep.  556.  to  record  is  chargeable  with   notice 

162  Allegheny  Oil  Co.  v.  Snyder,  of  the  contents  of  the  original.  Wal- 
106  Fed.  Pep.  764;  45  C.  C.  A.  604.  ter  v.  Hartwig,  106  Ind.  123;  6 
In  this  case  it  was  held  that  a  suit  N.  E.  Pep.  5;  Musick  v.  Barney,  49 
to  quiet  title  would  lie  in  favor  of  Mo.  458 ;  Hastings  v.  Cutler.  24  N. 
the  lessee  out  of  possession,  under  H.  481 ;  Gilbert  v.  Jess,  31  Wis. 
a  statute  giving  one  either  in  or  110;  Musgrove  v.  Bonser,  5  Ore. 
out  of  possession  such  a  right.  313;  20  Am.  Pep.  737. 


LEASES.  105 

is  fully  developed  that  his  principal  will  not  be  able  to  obtain 
any  benefit  under  his  lease/'"* 

J§90.     Exclusive  right  of  licensee  of  lessee. —  Solid  mineral  — oil. 

"  A  license  to  dig  and  take  ore  is  never  exclusive  of  the  licen- 
sor, unless  expressed  in  such  words  as  to  show  that  it  was  tlie 
intention  of  the  parties.  Where  the  license  simply  gives  the 
licensee  the  right  to  dig  and.  take  ore,  the  licensor  may  take  ore 
from  tlie  same  mine  at  the  same  time,  and  also  grant  ])ermis- 
sion  to  others  to  exercise  the  same  right."  ^°*  The  words  of  a 
license  may  be  such  as  to  exclude  the  right  of  the  grantor  to 
mine.^*^^  Thus  a  license  giving  the  licensee  '^  full  and  free  lib- 
erty "  to  work  will  be  sufficient  to  make  the  license  an  exclusive 
one.^"°  u  ^  license  may  confer  a  sale  or  exclusive  right,  or 
simply  a  right  in  common.  If  it  simply  confers  a  right  to  dig 
and  take  ore,  or  to  work  a  mine,  it  is  not  exclusive,  and  the 
licensor  may  himself  take  ore  from  the  same  land  or  mine,  or 
license  others  to  do  so.  And  when  it  authorizes  the  licensee  to 
dig  and  carry  away  all  the  ore  to  be  found  in  certain  lands,  it 
does  not  confer  an  exclusive  right.  If  it  be  merely  a  license, 
and  no  estate  in  the  property  or  land  passed,  the  licensee  ac- 
quires no  title  to  the  ore  until  he  has  severed  it.  Such  a  license 
has  been  adjudged  to  confer  a  privilege  similar  to  a  right  of 
common  sans  nombre,  to  give  a  right  without  stint  as  to  quan- 
tity, but  not  exclusive  of  the  grantor.  There  can  be  no  doubt 
that  tlie  instrument  under  consideration  conferred  an  exclusive 

i'''3Duffield    V.    Michaels,    97    Fed.  Trotter,  29  X.  J.  Eq.  561;  Jennings 

Rep.   825.  Bros.   &    Co.   v.   Beale,    158   Pa.   St. 

The  lessee  of  mining  property  is  283 ;    27   Atl.   Rep.   948 ;    Massott  v. 

not  the  agent  of  the  owner.   Wilkins  Moses,  3  S.  C.  168;  Barker  v.  Dale, 

V.  Abell,  26  Colo.  462;  58  Pac.  Rep.  2    Fed.    Cas.    810;     3    Pittsb.     190; 

612.  Woodside  v.  Ciceroni,  93  Fed.  Rep. 

i64Silsby  V.  Trotter,  29  N.  J.  Eq.  1;    35   C.  C.   A.   177. 

228;   Mountjoy's  Case,  Godb.   18;    1  les  Caldwell  v.  Fulton,  31  Pa.  St. 

Amb.  307 ;  4  Leon.  147 ;  Chetham  v.  475. 

Williamson,   4   East  469;    Grubb   v.  loc  Doe.    d.    Hanley    v.    Wood,    2 

Bayard,    2    Wall    Jr.    81;    Funk    v.  Barn,  and  Aid.   724;   Sutherland  v. 

Haldeman,    53   Pa.    St.   229;    Stock-  Heatlieote    [1892],    Ch.    504;    East 

bridge  Iron  Co.  v.  Hudson  Iron  Co.,  Jersey  Co.  v.  Wright,  32  N.  J.  Eq. 

107    Mass.    290;    Manganese    Co.   v.  248. 


106  OIL    AND    GAS. 

right.  The  licensor  has  expressed  his  intention  in  that  respect 
in  plain  words."  ^"^  These  are  cases  of  solid  minerals,  and  at 
first  blnsh  one  wonld  suppose  that  the  same  rnles  would  be  ai> 
plied  to  gas  or  oil ;  such  is  not  the  case.  Owing  to  the  "  fugi- 
tive and  wandering  nature  "  of  oil  and  gas,  if  the  licensor  or 
lessor  could  put  down  a  well  on  the  leased  premises  he  might 
render  the  right  of  the  licensee  or  lessee  worthless,  by  drawing 
off  tlie  oil  and  gas,  even  after  he  had  expended  large  sums  of 
money  in  developing  the  premises.  It  necessarily  follows  that 
the  "  grant  of  well  rights  is  necessarily  exclusive."  ^"^  This 
rule  is  well  illustrated  in  a  Pennsylvania  case.  The  owner  of 
land  leased  a  certain  tract  of  land,  according  to  a  division  of 
the  tract  into  niunbered  sites,  each  site  situated  on  a  lot  num- 
bered respectively  on  a  map;  and  also  sites  for  three  wells  south 
of  the  railroad  track  on  it ;  to  be  designated  and  mutually  agreed 
upon  by  him  and  the  lessee,  for  a  term  of  fifteen  years,  "  with 
the  sole  and  exclusive  right  and  privilege  during  said  period  of 
digging  and  boring  for  oil  and  other  minerals  on  said  lot." 
The  lessee,  for  oil  mining  purposes,  was  restricted  to  the  speci- 
fied sites ;  and  he  had  no  right  of  possession  for  any  other  pur- 
pose at  any  other  place  on  the  tract  of  land  described.  It  was 
held  that  the  lessor  could  not  drill  wells  on  the  tract  of  land 
outside  of  the  designated  sites,  nor  authorize  any  one  else  to  do 
so ;  and  if  he  undertook  to  do  so  a  court  of  equity  would  restrain 
him ;  for  the  reason  that  tlie  sinking  of  wells  outside  of  such 
sites  would  lessen  the  production  of  the  wells  drilled  by  the  les- 
see, and  the  injury  would  be  destructive  of  his  rights  and  was 
incapable  of  an  adequate  remedy  at  law.^®^ 

167  East  Jersey  Co.  v.  Wright,  32  Rep.  724;  29  Am.  L.  Reg.  93;   5  L. 

N.   J.   Eq.   248;    Johnston   Iron   Co.  R.  A.  731. 

V.  C  ambria  Iron  Co.,  32  Pa.  St.  241 ;  les  Duffield    v.    Hue,    136    Pa.    St. 

Gloninger  v.  Franklin  Coal  Co.,  55  602;    20  Atl.   Rep.   526;   Duffield  v. 

Pa.   St.   9;    Jennings   v.    Beale,    158  Hue,   129  Pa.   St.   94;    18  Atl.   Rep. 

Pa.  St.  283;  27  Atl.  Rep.  948;  Rey-  566;  Duffield  v.  Rosenzvveig,  144  P:i. 

nolds  vs.  Cook,  83  Va.  817;  3  S.  E.  St.  520;   23  Atl.  Rep.  4;  Duffield  v. 

Rep.  710;   Bronson  v.  Lane,  91  Pa.  Rosenzweig,  150  Pa.  St.  543;  24  Atl. 

St.    153.  Rep.   705;    Union  Petroleum   Co.   v. 

io«  Funk  V.  Haldeman.  53  Pa.  St.  Bliven    Petroleum    Co.    72    Pa.    St. 

229.  247;  Westmoreland,  etc.,  Co.  v.  173;   Heller  v.  Daley,  28  Ind.  App. 

DeWitt,    130   Pa.    St.   235;    18   All.  555 ;  63  N.  E.  Rep.  490.     See  Guffey 

V.  Deeds,  9  Pa.  Co.  Rep.  449. 


a 


LEASES.  10  i 

|91.     Implied  covenant. 

By  giving  a  lease  the  lessor  does  not  covenant  tliat  oil  or  gas 
is  on  the  premises,  or  tliat  it  can  be  found  on  them.^^"     There 
is,  however,  an  implied  covenant  of  right  of  entry  and  quiet  en- 
joyment for  tlie  purposes  of  tlie  lease;  and  it  is  broken  by  the 
exclusion  by  the  lessor  of  the  lessee  from  taking  possession  for 
the  purposes  of  the  lease,  or  his  withholding  from  him  the  pos- 
.session  for  such  purposes.'''     But  making  another  lease  during 
the  term,  by  the  lessor,  whether  the  first  lessee  be  in  actual  pos- 
session or  not,  is  not  a  violation  of  the  covenant  for  quiet  enjoy- 
ment.""    As   has   been    said   elsewhere,    there    is  not  only 
covenant  on  tlie  part  of  the  lessee  that  he  will  fully  develop  the 
leased  premises,  but  that  he  will  do  so  with  diligence.'"     There 
is  also  an  implied  covenant  on  the  part  of  the  lessee  that  he  will 
put  do^vn  enough  w^ells  to  protect  the  leased  premises  from  being 
drained  by  wells  on  adjacent  territory."*     If,  however,  the  lease 
specifies  the  number  of  wells  that  are  to  be  drilled,  there  is  no 
implied  covenant  that  more  than  Uie  number  specified  are  to  be 
drilled,  even  though  more  are  needed  to  fully  develop  the  terri- 
tory, or  to  protect  the  premises  from  wells  on  adjoining  terri- 
tory."^    The  lessee  is  under  no  implied  covenant  to  work  the 
premises  at  a  loss,  where  the  lessor  is  to  receive  a  part  of  tbe 
product  as  his  comi>ensation ;  and  his  judgment  whether  or  not 

iTo  Kokonio  Natural  Gas  Co.  v.  Al-  Gartlan,   45    W.   Va.   27 ;    29    S.   E. 

bright.  18  Ind.  App.  151;  47  N.  E.  Rep.    978;    44   L.    R.    A.      (See   the 

Rep.  682.  subject  of  "  Forfeiture.")     Adams  v. 

iTiKnotts  V.  McGregor,  47  W.  Va.  Stage,   18  Pa.  Super.  Ct.  Rep.  308; 

.566;   35  S.  E.  Rep.  899.  Sharp  v.  Behr,   117  Fed.  Rep.  864; 

172  Knotts  V.   McGregor,  supra.  Core  v.  N.   Y.,  etc.,   Co.    (W.  Va.), 

In  Pennsylvania  the  implication  43  S.  E.  Rep.  128. 
of  a  covenant  for  quiet  enjoyment  "4  Harris  v.  Ohio  Oil  Co.,  57  Ohio 
arising  from  words  of  grant  in  a  St.  629;  50  N.  E.  Rep.  1129;  48  N. 
conveyance  by  virtue  of  Act  of  May  E.  Rep.  502 ;  Colgan  v.  Forest  Oil 
28.  1715.  Sec.  6,  applies  only  to  an  Co.,  30  Pittsb.  L.  J.  (N.  S.)  68; 
estate  of  inheritance  in  fee  simple,  Kleppner  v.  Lemon,  176  Pa.  St.  502; 
and  not  to  a  lease  of  a  mere  right  35  Atl.  Rep.  109;  Glasgow  v.  Char- 
to  drill  oil  or  gas  wells  and  take  tiers,  152  Pa.  St.  48;  25  Atl.  Rep. 
the  products.  Chambers  v.  Smith,  232. 
183  Pa.  St.  122;  38  Atl.  Rep.  522.  i^s  Colgan  v.  Forest  City  Oil  Co., 

i73Huggins  v.  Daley.  99  Fed.  Rep.  194  Pa.  St.  234;  45  Atl.  Rep.  119; 

€06;  48  L.  R.  A.  320;  Steelsmith  v.  75  Am.  St.  Rep.  695. 


108  OIL    AND    GAS. 

the  work  can  be  carried  on  at  a  profit,  if  honest,  is  entitled  to 
great  weight,  and  should  prevail  as  against  the  opinion  of  tlie 
lessor,  or  experts,  or  the  court's,  or  all  of  them,  to  the  con- 
trary.^'*^  Where  the  lessee  was  to  pay  the  lessor  a  royalty  if 
the  flow  of  gas  was  sufficiently  strong  to  be  used  oif  the  premises, 
and  one  well  was  drilled  which  enabled  the  lessee  to  pay  the 
royalty;  but  afterwards  the  well  having  got  out  of  order,  was 
abandoned ;  it  was  held  that  the  lessee  was  under  no  implied 
covenant  to  fully  develop  the  premises  for  gas  for  the  common 
benefit  of  the  parties  to  the  lease;  for  the  reason  that,  because 
of  the  i^eculiar  nature  of  natural  gas,  the  effort  of  the  lessee  to 
discharge  such  an  obligation  might  result  in  the  entire  destruc- 
tion of  the  leasehold/^^  If  the  causes  for  forfeiture  of  a  lease 
are  specified  in  it,  the  courts  will  not  infer  that  there  are  other 
causes  of  forfeiture  not  declared  in  it  to  be  such.  Ordinarily 
a  breach  of  an  implied  covenant  will  not  work  a  forfeiture  of 
the  lease.^^* 

§92.     Covenant  running  with  land. 

Covenants  that  run  witli  the  land  bind  all  that  hold  under  the 
lease,  whetlier  as  assignee  or  otherwise.  As  a  rule  the  inten- 
tion of  the  parties  to  the  lease  or  deed  determines  the  question 
whetlier  a  covenant  runs  with  tbe  land ;  and  to  ascertain  that  in- 
tention resort  must  be  had  to  the  words  of  the  covenant,  consid- 
ered, of  course,  in  the  light  of  the  circumstances  of  the  transac- 
tion and  the  subject  of  the  grant.^^^  A  covenant  to  use  due 
diligence  in  developing  the  land  is  such  a  covenant. ^®°     So  is  a 

176  Young  V.   Forest   Oil   Co.,    194  from  operating  it,  but  contained  no 

Pa.   St.   243;    45  Ail.  Rep.   121;   30  provision  requiring  its  operation,  it 

Pittsb.  L.  J.   (N.  S.)   221;  Stoddard  was  held  that  there  was  no  implied 

V.  Emery,  128  Pa.  St.  436;  24  W.  N.  covenant  on  the  part  of  the  vendee 

C.  566;   18  Atl.  Rep.  339.  to  work  the  mine.     Hawks  v.  Tay- 

1"  Knight  V.  Mfg's.  Natural  Gas  lor,   70   111.   App.   255. 

Co.   (Pa.),  23  Atl.  Rep.  164;  29  W.  "8  Core   v.   New  York   Petroleum 

N.   C.   261.  Co.    (W.  Va.),  43  S.  E.  Rep.  128. 

In  the  case  of  a   sale  of  a  mine,  i7!>Landell   v.   Hamilton,   175   Pa. 

where  the  contract  provided  for  the  St.  327;  34  Atl.  Rep.  663. 

payment  to  the  vendor  of  a  certain  iso  Bradford  Oil  Co.  v.  Blair,  113 

portion    of    the    net   profits    arising  Pa.  St.  83;  4  Atl.  Rep.  218. 


LEASES.  100 

covenant  for  rent  or  royalty,^''^  or  a  certain  amount  of  the  oil 
produced.^'*'  An  agreement  that  rent  should  be  paid  for  so 
much  of  the  surface  of  the  ground  as  is  used  for  dumping  pur- 
jwses  is  a  covenant  running  with  the  land.^^^  So  an  agreement 
that  tlie  lessor  should  have  a  part  of  the  gas  free  is  such  a 
covenant.  ^^* 

§93.     Personal  covenants. 

A  right  in  the  lessor  to  receive  gas  in  a  certain  quantity,  or 
for  a  certain  purjx)se,  may  be  a  mere  personal  eovenaiit,  and  one 
not  binding  on  an  assigiiee  of  the  lease  or  grantee  of  the  prem- 
ises. Such  was  held  to  be  the  case  witli  respect  to  the  right  to 
take  coal  out  of  a  mine  Thus  a  will  provided  as  follows : 
'"  To  my  second  son,  John,  I  give  and  bequeath  the  plantation 
he  now  occupies,  to  be  enjoyed  by  him,  his  heirs  and  assigns 
forever,  with  free  privilege  of  taking  what  coal  he  wants  for  his 
own  use  off  tlie  home  plantation."  When  the  will  was  made 
there  was  an  open  mine  on  tlie  ''  home  plantation,"  but  none 
on  the  farm  John  occupied.  The  court  considered  the  right  to 
take  the  coal  a  mere  privilege  which  was  personal  to  John,  and 
one  that  did  not  pass  to  his  grantee  of  the  land  devised  to  him.^^" 
So  an  agreement  in  a  lease  that  the  lessee  may  operate  an  ad- 
joining tract,  if  the  lessor  shall  so  elect,  is  personal  between  the 
lessor  and  lessee ;  and  if  the  lessor  has  not  elected  to  have  it 
operated,  a  hona  fide  purchaser  takes  it  free  from  the  right  of 
the  lessee  to  operate  it.  In  such  an  instance  the  purchaser  is 
only  bound  to  inquire  if  the  lessor  has  elected  to  have  the  land 
operated  according  to  the  terms  of  the  lease.^*®     An  agreement 

isiFennell  v.  Guffey,  139  Pa.  St.  Bridge,  etc..  Co..  1S7  Pa.  St.  500;  41 

341;  20  Atl.  Pep.  1048;  Springer  v.  Atl.  Pep.  458;  Indiana,  etc.,  Oil  Co. 

Gas   Co.,   145   Pa.   St.   430;    22   Atl.  v.    Hinton     (Ind.),    64    N.    E.    Rep. 

Pep.  986;  Fennell  v.  Guffey,  155  Pa.  224. 

St.  38;  29  Atl.  Pep.  785.  iss  Coal  Co.  v.  Pierce.  153  Pa.  St. 

182  Akin  V.  Marshall  Oil  Co.  74 ;  25  Atl.  Pep.  1026 ;  Indiana,  etc., 
(Pa.).  41  Atl.  Rep.  748;  Crawford  Oil  Co.  v.  Hinton  (Ind.),  64  N.  E. 
V.  Witherbee,  77  Wis.  419;  46  N.  W.  Rep.  224. 

Rep.  545.  186  Emerine  v.  Steel.  8  Ohio  C.  Ct- 

183  Schooley  v.  Butler  Mining  Co.,  Pep.  381;  4  Ohio  C.  Dec.  92;  Nor- 
9  Kulp    (Pa.),  291.  cross  v.  James,  140  Mass.  188;    2  N. 

184  Electric  City,  etc.,  Co.  v.  West  E.  Rep.  946. 


110  OIL    AND    GAS. 

on  tlie  part  of  the  lessee  to  devote  all  his  time  to  the  development 
•and  operation  of  the  land  is  purely  personal ;  and  if  tlie  lease  be 
assigned  by  the  lessor  the  lessee  may  operate  other  territory.^*' 
An  agreement  at  the  end  of  the  lease  that  the  lessor  wonld  bny 
all  the  tools  and  machinery  used  on  the  leased  premises  is  a  per- 
sonal covenant.^^^ 

§94.     Assignment   of  contract   giving   interest   in   land. —  Incor- 
poreal hereditament. —  Lease. —  Surrender. 

If  a  contract  concerning  tlie  right  to  drill  for  oil  or  gas  on 
certain  premises,  and  to  operate  them  if  either  or  both  be  fonnd, 
is  such  as  to  operate  as  a  grant  of  an  interest  in  the  premises, 
then  it  can  be  assigned  or  transferred  only  in  writing,  and  a 
parol  transfer  of  it  is  void.  "  At  common  law,  corporeal 
hereditaments  were  demisable  witliout  deed  or  writing,  the  lease 
being  perfected  in  the  case  of  a  demise  for  years,  by  the  entry 
'of  the  lessee,  and  by  livery  of  seizin  in  the  case  of  a  lease  for 
life ;  but  a  deed  was  always  required  for  the  conveyance  of  in- 
«eorporeal  bereditaments.  The  provision  of  the  first  section  of 
the  English  Statute  of  Frauds,^'*"  that  leases  not  in  writing 
:should  have  the  effect  of  leases  at  will,  left  untouched  leases  of 
incorporeal  hereditaments.^"**  At  common  law,  a  lease  of  cor- 
iDoreal  hereditaments  might  be  surrendered  to  him  who  had  the 
"I'eversion  or  remainder  without  deed,  writing,  or  livery ;  but  a 
■deed  was  indispensable  to  a  surrender  of  incorporeal  heredita- 
ments."^ At  common  law,  a  lease  for  years  or  for  life  might 
he  surrendered  by  parol  or  by  operation  of  law.""  Incorporeal 
liereditaments,  the  conveyance  of  which  could  not  be  evidenced 
and  accompanied  by  livery  of  seizin,  but  lay  only  in  grant,  ai- 
rways at  common  law  could  pass  only  by  deed,  and  could  not 
he  surrendered  by  operation  of  law."^     By  section  three  of  the 

i"Findlay  v.  Carson,  97  la.  537;  "i  2  Piatt  Leases,  499. 

«66  N.  W.  Rep.  759.  "2  Lynch  v.  Lynch,  6  Irish  L.  R. 

1S8  Etowah    Mining   Co.  v.    Wills       131. 

Valley,  etc.,   Co.,   121   Ala.  672;   25           in3  Brown    St.    of    F.,    Sec.    2,    5; 

:So.  Rep.  720.  Reed   St.   of   F.,    See.    767;    Washb. 

189  29  Car.  II  Chap.  3.  Real  Prop.,  Sec.  552;  Lyon  v.  Reed. 

ioo2  Piatt  Leases,  1,  2.  13  M.  and  W.  285;   Wood  Landlord 


LEASES. 


Ill 


English  Statute  of  Frauds  it  was  provided,  tliat  '  no  leases 
.  .  .  shall  be  assigned,  granted  or  surrendered,  unless  it  be 
by  deed  or  note  in  writing  signed,  ...  or  by  act  and 
operation  of  law.'  After  the  enactment  of  this  statute,  which 
introduced  no  change  as  to  incorporeal  hereditaments,  they 
could  not  be  surrendered  except  by  deed."*  The  common  law 
in  resiDect  to  the  surrender  of  leases  must  be  regarded  as  in 
force  in  this  State,  except  so  far  as  it  is  modified  by  our  own 
statutes.^"''''  Our  statutes  do  not  contain,  as  do  those  of  some  of 
our  States,  any  express,  separate  provision  relating  to  assign- 
ments or  surrenders  of  leases,  corresponding  to  the  third  section 
of  the  English  statute."®  But  our  statutes  contain  notliing  ex- 
pressly or  by  necessary  implication  forbidding  surrender  by 
act  and  operation  of  law,  and  construing  our  express  require- 
ments concerning  conveyances  as  relating  to  transfer  by  eon- 
tract,  and  as  including  surrenders  in  fact,  we  may  hold  that 
such  surrenders  as  properly  come  within  tlie  meaning  of  the 
words  '  by  act  and  operation  of  law  '  as  used  in  the  British 
Statute  of  Frauds  and  in  similar  statutory  provisions  of  sister- 
States,  may  be  upheld  in  this  State.  The  provisions  of  the 
English  statute  for  surrender  by  act  and  operation  of  law  was 

and    Tenant     (2d    ed.),     1154,    and  S.   Indiana.    1901,   Sec.   .3375.)      An- 

notes.  other     statute     provided     that     the 

19*  Lyon  V.   Reed,   13   M.   and   W.  word     "  Lind "     included     "lands," 

28.0-,  2  Piatt  Leases,  503;  Brown  St.  "tenements"  and  "hereditaments.'* 

of  F.,   Sec.   2.   5.  (R.S.Indiana..  1901,  Sees.  24L  1309.) 

195  R.  S.  1901.  Sec.  236.  While   still   another   dispensed   with 

19G  The  court  had  already  quoted  the  use  of  the  words  "  heirs  and  as- 

a     statute     which      provided     that  signs "  to  create  in  the  grantee  and, 

"Conveyances    of    lands    or    of   any  estate    of    inheritance.      (R.    S.    In~ 

interest  therein,  shall  be  by  deed  in  diana,    1901,    Sec.     1901.)      By    the 

writing,  svihscribed.  sealed  and  duly  Statute  of  Frauds  of  that  State  na 

acknowledged  by  the  grantor  or  by  action  could  be  brought  on  any  con- 

his  attorney,  except  bona  fide  leases  tract    for   the    sale   of   lands    unless, 

for     a     term     not     exceeding     three  the   contract  or   some  memorandum 

years."      (R.   S.   Indiana.   1901.   Sec.  or  note  thereof  was  in  writing  and 

"33.1 ).  and  it  had  said  that  the  term  signed  by  the  party   to  be  charged 

"  grantor,"  as  used  in  the  statute,  therewith,    or    by   some    person    au- 

embraced    "  every   person   by   whom  thorized  to  sign  it,  excepting  lease? 

any  estate  or  interest  in   land  is  ere-  not    exceeding    the    term    of    three 

ated.  granted,  bargained,  sold,  con-  years.      (R.    S.   Indiana,    1901,    Sec» 

veyed,  transferred  or  assigned."   (R.  6629.) 


112  OIL    AND    GAS. 

but  a  statiiton^  regulation  of  a  coninion  law  method.  It  seems 
sufficiently  plain  that  an  interest  in  land  lying  only  in  grant  or 
a  term,  unless  it  be  for  tliree  years  or  less,  camiot  be  surren- 
dered by  express  contract,  that  is,  cannot  be  transferred  or 
yielded  up  by  surrender  in  fact,  without  a  writing  sufficient  for 
the  conveyance  of  an  interest  in  land  greater  than  can  be  created 
by  parol."  ^" 

§95.     Lessee  liable  after  assignment  on  express  covenants. 

"  It  is  generally  established  that  the  lessee,  who  before  his 
assignment  of  the  lease  to  a  third  person  is  bound  by  both  the 
express  and  implied  covenants  of  the  lease,  continues  after  the 
assignment  to  be  liable  upon  his  express  covenants  therein,  as  if 
no  assignment  had  been  made,  and  that  the  assignee  is  liable 
to  the  lessor  upon  all  the  covenants  which  run  with  the  land, 
for  non-performance  thereof  while  the  estate  is  in  him,  but  is 
not  liable  for  breach  of  any  covenants  which  occur  before  the 
assigTiment  to  him  or  after  his  assignment  to  another,  the  lia- 
bility of  the  lessee  after  his  assignment  resting  in  privity  of 
contract,  that  of  the  assignee  resting  in  privity  of  estate 
and  continuing  only  while  such  privity  exists,  though  he 
remains,  after  his  assignment  to  another,  liable  for  breach  which 
he  committed  while  he  had  the  estate.  If  the  assignee  hold  pos- 
session under  the  lease,  or  have  immediate  right  to  the  posses- 
sion, when  any  rent  falls  due,  he  will  continue  liable  therefor, 
and  will  not  escape  such  liability  by  his  subsequent  assignment, 
and  this  is  true  whether  he  become  assignee  by  the  act  of  the 
lessee  or  of  the  lessee's  assignee  or  by  act  of  law,  as  by  purchase 
at  a  sheriff's  or  an  owner's  sale."  ^^^ 

107  Heller  v.  Dailey,  28  Ind.  App.  v.  Giiffey,  139  Pa.  St.  341 ;  20  Atl. 
.555;  63  N.  E.  Rep.  490,  citing  to  Rep.  1048;  Aderhold  v.  Oil  Well 
last  proposition  McCall  Real  Prop.  Supply  Co.,  158  Pa.  St.  401;  28  Atl. 
95,  96;  Taylor  L.  and  T.,  Sec  509;  Rep.  22;  Edmonds  v.  Mounsey.  15 
Wood  L.  and  T.,  Sees.  488,  494;  1  Ind.  App.  399;  44  N.  E.  Rep.  196; 
Washb.  Real  Prop.  (5th  ed.)  579;  Breckenridge  v.  Parrott.  15  Ind. 
Peter  v.  Barnes.  16  Ind.  219;  Ross  App.  411;  44  N.  E.  Rep.  66;  Tn- 
V.  Schneider,  30  Ind.  423.  diana   Natural   Gas   and   Oil   Co.   v. 

108  Heller  v.  Dailey.  28  Ind.  App.  Hinton   (Ind.),  64  N.  E.  Rep.  224. 
555;  63  N.  E.  Ron.  400;   Fennel  1  v. 


LEASES.  113 

§96.     When  work  must  be  begun. 

If  no  time  is  specified  within  which  the  work  of  development 
is  to  be  begun,  then  the  law  steps  in,  as  we  have  seen,  and  re- 
quires it  to  be  begun  within  a  reasonable  time,  and  the  circum- 
stances of  each  particular  case  nuist  detennine  what  would  be 
a  reasonable  time.  For  if  the  premises  are  surrounded  by  other 
oil  or  gas  lands  that  are  being  rapidly  developed,  and  thereby 
in  all  probability  drawing  the  gas  and  oil  from  under  the  leased 
premises,  the  lessee  must  proceed  with  greater  celerity  than  if 
such  were  not  the  case ;  and  if  the  leased  premises  are  only  a 
few  acres,  so  that  the  chances  of  losing  the  oil  or  gas  beneath 
the  surface  would  be  greater  than  if  they  were  of  great  or  con- 
siderable extent,  then  greater  celerity  is  probably  required  than 
in  the  latter  instances.^"''  Usually,  however,  the  time  within 
which  work  is  to  begin  is  fixed  in  the  lease,  in  which  case  the 
lessee  has  the  whole  time  allowed  within  which  to  begin  the 
work  of  developanent,  but  no  more.^°°  Thus  where  thirty  days 
was  given  within  which  operations  must  be  begun  or  the  lease 
be  void,  work  begun  upon  the  premises  in  good  faith  upon  the 
afternoon  of  the  thirtieth  day  was  held  to  be  in  time.^"^ 

§97.     Diligence  in  operating  leased  premises  after  development. 

Every  gas  or  oil  lease  contains  an  implied  covenant  that  the 
lessee  ^vill  use  reasonable  diligence  in  operating  the  premises 
after  they  have  been  developed.  One  can  readily  see  that  a 
lessee,  after  he  has  developed  the  premises,  may  work  them  in 
so  leisurely  a  way  as  to  be  of  little  profit  to  the  lessor,  and  that 

i99Kleppner  v.  Lemon,  29  Pittsb.  sell,  19  Ohio  Cir.   Ct.  Rep.  266;    10 

L.  J.    (N.  S.)    346.  Ohio    C.    D.    472;    Fleming   Oil    and 

200  Detlor  v.  Holland,  57  Ohio  St.  Gas  Co.  v.  South  Penn.  Oil  Co.,  37 
492:  49  N.  E.  Eep.  690;  Monfort  v.  W.  Va.  645;  17  S.  E.  Rep.  203;  Elk 
Lanyon  Zinc  Co.  (Kan.),  72  Pac.  Fork  Oil  and  Gas  Co.  v.  Jennings. 
Rep.  784.  84  Fed.  Rep.  839. 

201  Henderson  v.  Ferrell,  183  Pa.  Whether  hauling  lumber  on  the 
St.  547;  41  W.  N.  C.  404;  38  Atl.  ground  the  last  day  is  a  commence- 
Rep.  1018;  Simon  v.  Northwestern,  ment  of  the  work  is  a  question  for 
etc.,  Co.,  12  Ohio  C.  C.  Rep.  170;  5  the  jury.  Forney  v.  Ward  (Tex. 
Ohio  Cir.  Dec.  456;  Dufficld  v.  Rus-  Cir.  App.),  62  S.  W.  Rep.  108. 


114  on.    AND    GAS. 

the  latter  may  suffer  a  serious  damage  by  reason  of  tlie  conduct 
of  die  lessee.  It  will  not  do  to  say  that  the  lessee  has  such  an 
interest  in  the  working  of  the  premises  as  it  is  to  his  advantage 
to  work  them  diligently;  for  his  interests  may  be  adverse  ta 
tliose  of  the  lessor  —  as,  for  instance,  he  may  take  leases  at  a 
lower  rental  or  royalty  on  the  adjoining  premises  whereby  he 
can  drain  the  premises  first  leased.  A  failure,  therefore,  to^ 
work  the  premises  diligently  will  subject  the  lessee  to  an  action 
for  damages.  And  an  express  covenant  to  work  the  premises- 
diligently  may  bring  about  a  forfeiture  of  the  lease,  if  they  are 
not  so  worked. '■*'"  In  the  case  of  a  coal  mine,  it  cannot  be  in- 
ferred, from  an  agreement  to  carry  on  miuing  operations  in  a 
safe,  skilful  and  workmanlike  manner  that  there  is  a  covenant 
to  work  the  mine  continuously.""^ 

§98.     Agreement  as  to  what  constitutes  due  diligence. 

The  lessor  and  lessee  may  agree  concerning  what  shall  con- 
stitute due  diligence,  in  which  event  they  will  be  bound  by  the 
agreement,  whether  the  degree  of  diligence  constitute  due  dili- 
gence or  not.  In  that  event  a  purchaser  from  the  lessor,  even 
without  notice  of  the  special  agreement,  but  with  a  knowledge 
of  the  existence  of  the  lease,  will  be  bound  by  such  agree- 
ment.'"* 

§99.     Unprofitable  lease. 

Where  the  lessor  is  to  receive  a  part  of  the  profits,  or  even  a 
part  of  the  product  as  a  royalty,  the  lessee  is  not  bound  to 
operate  the  premises  at  a  loss,  and  may  abandon  them.'"^     And 

202  Kock's  Appeal,  93  Pa.  St.  434;  Gas   Co.,    146   Pa.   St.   18.5;    23   Ail. 

Elk   Fork   Oil   and  Gas  Co.  v.  Jen-  Rep.    164;    Core   v.   N.   Y..   etc.,   Co. 

ningrs,   84   Fed.   Rep.   839;   Kleppner  (W.  Va.).  43   S.   E.  Rep.   128;   Ed- 

V.  Lemon.   170  Pa.  St.   .502;   35  All.  wards   v.    Tola    Gas   Co.    (Kan.),   0) 

Rep.    109;    Rarnsdall   v.   Boley.    119  Pac.  Rep.   350. 

Fed.   Rep.   191;   Harris  v.   Ohio  Oil  ^oc'McIntyre  v.  Mclntyre  Coal  Co., 

Co..  57  Ohio  St.  629;  ,50  N.  E.  Rep.  105  N,  Y.  264. 

1129:  Gla.sgow  v.  Chartiers  Oil  Co.,  204  Bartley  v.  Phillips,  179  Pa.  St. 

152  Pa.   St.   48;    25   All.   Rep.   232:  175;   36  Atl.  Rep.  217. 

Parish  Fork  Oil  Co.  v.  Bridgewater  205  Bradford  Oil  Co.  v.  Blair.  113 

Gas  Co.,   51   W.  Va.   583;   42  S.   E.  Pa.  St.  83:  4  Atl.  Rep.  218:  Adams 

Rep.  655;  McNight  v.  "Mfg.  Natural  v.  Stage,  18  Pa.  Super.  Ct.  Rep.  308. 


LEASES.  115 

the  honest  opinion  of  the  lessee,  tliat  the  lease  cannot  be  operated 
profitably,  is  entitled  to  more  weight  tlian  tiie  opinion  of  the 
lessor,  of  experts,  of  the  judge  who  tries  the  case,  or  of  all  com- 
bined.'"*^ If  no  rent  has  been  agreed  upon,  to  be  paid  the  lessor 
if  ojjerations  are  not  carried  on,  under  an  agreement  giving  the 
lessee  (so  called)  all  right,  title  and  interest  in  the  oil,  such 
lessee  is  liable  only  for  nominal  damages.'"^  If  the  lease  sets 
forth  the  number  of  wells  that  must  be  drilled,  the  lessee  is  not 
required  to  drill  more  than  the  number  in  order  to  make  the 
lease  profitable. ^°^  He  is  not  bound  to  put  down  a  well  that 
would  be  unprofitable,  unless  he  has  expressly  agreed  to  do  so.""® 

§100.     Lessor  cannot  impair  value  of  lease  by  drilling  wells  on 
his  own  land. 

Ag  a  general  proposition,  a  lessor  cannot  drill  wells  on  his 
■OAvn  lands  so  close  to  the  premises  he  has  demised  as  to  seriously 
impair  the  value  of  the  latter,  by  extracting  the  oil  or  gas 
from  them.  Not  infrequently  a  protecting  territory  of  a  cer- 
tain width  surrounding  the  leased  premises,  where  it  is  wholly 
or  in  part  bounded  by  the  lessor's  lands,  is  provided  for  in 
the  lease,  within  which  neither  the  lessor  nor  the  lessee  may 
operate.  A  rather  anomalous  case  on  this  question  arose  in 
Pennsylvania.  In  that  instance  a  lease  of  less  than  four  acres 
was  taken,  with  "  a  protection  of  ten  rods  on  the  east  side  " 
of  the  lot  "  and  eight  rods  on  the  north  side."  This  "  protec- 
tion," so  far  as  the  part  in  dispute  was  concerned,  made  a 
rectangle  on  the  northeast  corner  of  the  lease  eighty  rods  square. 

206  Young  V.  Forest  Oil  Co.,  194  20s  Colgan  v.  Forest  Oil  Co.,  194 
Pa.  St.  243;  45  All.  Rep.  121;  30  Pa.  St.  234;  45  All.  Rep.  119; 
Pittsb.  L.  J.  (N.  S.),  221;  Glasgow  30  Pittsb.  L.  J.  (N.  S.)  68;  75  Am. 
V.  Chartiers  Oil  Co.,  152  Pa.  St.  48;  St.  Rep.  695;  Stoddard  v.  Emery, 
■25  Atl.  Rep.  232;  affirming  23  128  Pa.  St.  436;  24  W.  N.  C.  566; 
Pittsb.    L.    J.    (N.    S.)     146;    Snod-  18  Atl.  Rep.  339. 

grass  V.   South   Pa.   Oil  Co.,  47   W.  209  Adams  v.  Stage,  18  Pa.  Super. 

Va.  509;    35   S.  E.  Rep.   820;   Low-  Ct.    Rep.    308;    Venture   Oil    Co.    v. 

ther  Oil  Co.  v.  Miller- Sibley  Oil  Co.  Fretts,  152  Pa.  St.  451;  25  Atl.  Rep. 

(W.  Va.),  44  S.  E.  Rep.  433.  732;    Steelsmith   v.   Gartlan,  45   \V. 

207  Chamberlain  v.  Parker,  40  N.  Va.  27;  29  S.  E.  Rep.  978;  44  L.  R. 
Y.  569.  A.    107. 


116  OIL    AND    GAS. 

Ill  Strict  sense,  this  left  a  square  of  eight  by  ten  rods  between 
the  east  and  north  "■  protections  " ;  and  in  this  square  the  lessee 
sought  to  drill  a  well.  This  the  court  held  he  could  not  do,  and 
in  discussing  the  question  used  the  following  language: 

"  If  tlie  stipulation  in  the  lease,  on  which  the  right  to  the 
injunction  depends,  is  to  be  strictly  construed  according  to  the 
literal  meaning  of  the  language,  the  defendant's  well  cannot  be 
regarded  as  within  the  protection  for  wdiich  it  provides,  and  if 
so,  the  plaintiffs  have  no  legal  or  equitable  right  to  the  relief 
asked  for  in  the  bill.  But  the  agreement  must  be  construed 
with  reference  to  the  subject  matter,  and  so  as  to  effectuate,  if 
possible,  the  purpose  for  which  it  was  intended.  The  lease  was 
'  for  the  sole  and  only  purpose  of  mining  and  excavating  for 
petroleum,  coal,  rock  or  carbon  oil '  in  the  tract  described 
therein.  The  parties  probably  knew  that,  if  oil  was  found  in 
the  demised  premises,  a  well  bored  within  a  short  distance 
would  draw  off  more  or  less  of  the  oil,  and  that  for  the  same 
reason  a  well  on  the  border  or  side  of  the  tract  would  draw  part 
of  its  supply  from  the  adjoining  ground.  The  object  of  the 
agreement  was,  therefore,  twofold :  To  prevent  the  lessor  or 
any  one  under  him  from  mining  or  boring  wells  within  eight 
rods  of  the  north  and  ten  rods  of  the  east  line  of  the  tract 
described  in  the  lease  and  to  give  the  lessees  more  ground  for 
the, supply  of  any  wells  they  might  drill  or  bore  on  the  demised 
premises  in  proximity  to  these  lines.'  Is  it  then  a  reasonable 
sup]X)sition  that  the  parties  intended  to  leave  a  gap  at  the 
corner  where  these  lines  intersect  which  would  render  tlie 
'  protection  '  valueless  and  defeat  the  purpose  for  which  it  was 
intended  ?  The  master  and  the  court  below  were  of  the  opinion 
that  it  was  the  intention  of  the  parties  to  secure  the  same  pro- 
tection to  the  corner  as  to  the  sides  of  the  demised  tract,  and 
that  the  agreement  should  be  so  construed  as  to  carry  out  their 
intention.  This,  as  it  seems  to  us,  is  its  reasonable  inter])rota- 
tion  ;  and,  if  so,  the  defendants  had  no  riglit  to  construct  build- 
ings, machinery,  and- to  put  down  a  well  within  a  few  feet  of 
the  corner  of  the  plaintiff's  leasehold,  and  pump  therefrom,  as 
they  did,  large  quantities  of  nil.  Xor  can  there  be  a  doubt 
that  the  plaintiffs  have  a  sufficient  title  to  enable  them  to  obtain 


LEASES.  IIT 

redress  by  injunction  of  the  wrong  done  by  the  defendants. 
The  trespass  of  which  they  complain  is  of  a  permanent  nature, 
and,  under  the  facts  found  by  the  master,  destructive  of  their 
leaseliold.  It  is  clear,  then,  that  under  the  equitable  powers 
conferred  by  the  statute,  tlie  court  below  had  jurisdiction  for 
its  prevention  or  restraint."  ^^" 

Where  the  lease  provided  that  no  wells  should  be  drilled 
within  three  hundred  yards  of  a  certain  building,  and  there 
was  a  reservation  of  the  surface  for  tillage;  it  was  held  that 
the  land  witliin  this  three  hundred  yards  could  not  be  leased  by 
the  o^^^ler  to  a  third  party  to  drill  wells  upon ;  for  the  lessee 
had  a  right  to  draw  all  the  oil  from  beneath  its  surface  that  he 
could  by  wells  sunk  in  that  portion  of  the  tract,  of  which  the 
three  hundred  yards  was  a  part,  where  he  had  a  right  to  drill 
them.'" 

j§101.     Lessee  draining  premises  by  operations  on  adjoining  ter- 
ritory. 

A  lessee  must  act  in  good  faith  in  the  operation  of  the  leased 
premises.  He  cannot  under  the  guise  of  ownership  of  the  ad- 
joining premises  drain  the  lands  he  has  leased  by  sinking  wells 
on  sudi  premises,  under  the  claim  of  a  right  to  do  so,  and  not 
put  down  a  sufficient  number  of  wells  on  the  leased  territory  as 
will  protect  it  from  the  wells  ojierated  on  such  adjoining  terri- 
tory, when  the  lessor,  at  least,  receives  his  compensation  by  a 
royalty  on  or  a  part  of  the  oil  produced,  or  by  a  rental  of  so 
much  per  producing  well.  Of  course,  if  the  lessor  receives  a 
lump  sum  per  annum  for  the  ground,  or  so  much  per  acre  per 

210  Allison's  Appeal.  77  Pa.  St.  simply  push  the  gas  in  the  mains 
221.  to   the   consumer   or   tlie   company's 

211  Westmoreland,  etc.,  Co.  v.  De-  reservoir,  and  not  cause  the  gas  to 
Witt,  130  Pa.  St.  235;  18  Atl.  Rep.  flow  from  the  well  in  greater  quan- 
724;  29  Amer.  L.  Reg.  93;  5  L.  R.  tities  than  it  would  if  the  well  were 
A.   731.  left    open    and     the    gas    permitted 

The   use  of  pumps,   to  pump   the  to  escape,  unobstructed,  into  the  at- 

gas  to  a  distant  city,  does  not  vio-  mosphere.     Richmond,  etc..  Gas  Co. 

late   the   rights   of  land   proprietors  v.    Enterprise,    etc..    Gas    Co.     (Ind. 

whose  lands  adjoin  the  leased  prop-  App.),  66  N.  E.  Rep.  782. 
erty,  at  least  so  long  as  the  pumps 


118  OIL    AND    GAS. 

annum,  then  it  is  immaterial  to  him  whether  his  premises  are 
developed  or  not;  and  the  lessee  may  conduct  oi)erations  on  the 
adjoining  territory,  even  tliough  he  drain  the  leased  premises 
entirely  of  their  oil  and  gas.  Where  an  operator  obtained 
leases  of  two  adjoining  farms,  and  placed  a  well  on  one  of 
them,  so  close  to  the  line  between  them  as  to  drain  botli  farms 
alike,  and  failed  to  sink  a  well  on  the  other  farm  to  offset  the 
well  he  had  already  drilled  on  the  first  farm,  it  was  held  that 
tlie  owner  of  such  other  farm  was  entitled  to  damages ;  and  in 
estimating  the  damages  the  oil  actually  extracted  will  be  con- 
sidered in  the  same  way  as  where  an  owner  wrongfully  mingles 
and  confuses  his  ovm  goods  with  another's."^'  And  if  the 
lessee  refuse  to  develop  such  other  farm,  within  a  reasonable 
time,  the  court  may  decree  a  forfeiture  of  the  lease  of  it,  or  of 
so  much  of  it  as  remains  undeveloped."^^ 

^102.     Drilling  well  near  boundary  line. 

By  drilling  a  well  close  to  the  boundary  line  of  his  land  tlie 
owner  may  not  only  drain  the  oil  or  gas  from  his  own  territory 
but  from  that  of  his  adjoining  neighbor.  This  is  easily  per- 
ceived in  instances  of  drilling  wells  on  ordinary  town  lots,  which 
are  often  only  thirty  or  forty  feet  wide  and  three  or  four  times 
as  long.  It  is  quite  obvious  in  such  an  instance  one  well  may 
drain  the  oil  or  gas  from  under  several  or  even  many  lots.  And 
yet,  who  has  the  right  to  say  the  o\\Tier  of  a  lot  may  not  put 
down  a  well  on  it,  for  fear,  or  from  the  fact,  he  may  get  the  oil 
or  gas,  or  a  part  of  it,  under  his  neighbor's  lot?  His  neighbor 
has  the  |>ower  to  protect  his  interests,  by  sinking  a  well  on  his 
own  lot;  and  if  he  does  not  see  fit  to  do  so,  he  has  no  right  to 
prevent  another  and  adjoining  lot  owner  from  developing  his 
o^\Tl  territory.  He  cannot  play,  as  it  were,  tlie  "dog  in  the 
manger  "  policy.  Of  course,  the  same  is  true  of  larger  tracts, 
—  tracts  of  even  hundreds  of  acres.  One  land  owner  may  not 
deprive  another  and  adjoining  one  of  the  right  to  drill  a  well 

2i2Kleppner  v.  Lemon,  29  Pittsb.  502;  35  All.  Rep.  109.  See  Henne 
L.  J.  346.  V.   South.  Penn.  Oil  Co.    (W.  Va.), 

21.-!  Klpppner  v.  Ter^nn    ITH  Pi.  S^       43  S    E.  Rep.  147. 


LEASES.  ^^^ 


on  hi.  o^^al  land  wherever  he  wills.     If  his  neighbor  put  a 
well  within  a  few  feet  of  his  boundary  line,  then  he  may  put  a 
well  innnediately  opposite  and  just  within  the  line  on  his  ow 
land    althouoh  he  must  necessarily  draw  oil  or  gas  from  his 
neioiibor's  soil.     This  is  his  protraction. ="     The  adjoining  land 
ower  may  even  encrease  the  flow  of  gas  on  his  o^^m  premises 
by  shooting  his  wells,  although  it  will  have  the  effect  to  drtiw 
gas  from  his  neighbor's  adjoining  territory.^^^^     But  if  a  man 
through  mere  malice,  in  order  to  injure  his  neighbor's  gas  well, 
sink  a  well  on  his  own  land,  and  it  has  that  effect,  then  he  will 
be  liable  to  an  action  for  damages  brought  against  him  by  the 
injured  pcrson.^^"     A  statute  that  prohibits  drilling  within  a 
certain  distance  of  the  boundary  line  is  constitutional.'^' '      Land 
owners  mav  agree  that  they  will  not  drill  within  a  certani  dis- 
tance of  the  boundary  line  between  them ;  and  for  a  violation  ot 
the  agreement,  a  court  of  equity  will  enjoin  the  one  m  fau  t. 
The  mutual  protection  is  a  sufficient  consideration  to  uphold  the 
contract."^ 
§103.     Injunction.—  Quieting  title. 

Injunction  lies  to  protect  the  rights  of  a  lessee  in  the  leased 

territory.     He  may  enjoin  any  one  sinking  a  well  m  the^n, 

even  the  lessor,  and  is  not  compelled  tx>  resort  to  an  action  lor 

.i.T'.nv  V    Ohio  Oil  Co.,  57  Ohio       not  lie  to  protect  his  interests.   Eri- 

St   an    40  X  T  Eep!  399;  39  L.  R.       kino  v.  Forest  Oil  Co.,  80  Fed.  Rep. 

Tn   'vJN^O^^Iv'l    M.'54;  24S.E.Lp.G08;32L.R.A.800. 

^1    !r.     Co    V    Tyner.  131  Ind.  -«  Ware  v.  Lan,n.ade.  9  Oh.o  C. 

r-:r  31  N    E   Hep-.  I9T16  L.  R.  A.  Ct.  Rep.   85;   6  Ohio  C.  Dec.  43;   2 

'  XT-    i          i-,v,ri    atn     das.  Co    V.  Ohio  Dec.  116. 

nUiu"  '"0   P      St    M5       8    Ul.  Pu„,ping  .a,  .tter  it  ha,  read.ea 

r     -^4     r,    ,;Jr\    P.  ?.  !)3 ;  5  the  ga,  main,,  where  the  flow  from 

Tl  f-„     Ha'uev  m.«ler,157  the    well    is    not    rendered    greater 

Pa%f  ■  32    ;  "'a  1    Rep.  ^U;  22  than  it  would  he  if  the  we,,  wa,  ,e.t 

Pa.  ^t^-4     -'  ^^^^^  .g  ^^^  ^^jpj^  ^  violation  of  the 

^'  ^'rC'       .    Pn^  Cn    V    TA-ner    su-       rights  of  a  land  osvner  whose  land 
.^5  People  s  Ga.  Co.  ^  -  T,  ner.  ^  g ^_^^  ^^^^^^  ^^^^^^  ^^  ^^  .^^  ^^^.^^^  ^.^^ 

^"LDictu.   in  Hague  v.  Wheeler.       to    an    i-i-tion^  or  ^    cla^age. 

Richmond,    etc.,    Gas    Lo.    \.    Jivntfi 
'•'7.  „nd  owner  have  a,np,e  ren,-       pri,e.  etc..  Ga^  Co.   „nd.  .Vpp.,.  6,i 
e,lv    otherwise,    a,,    injon.tin,,    will       X.  E.  Kep.  ,S2. 


120  OIL    AND    GAS. 

damages.^^''  A  person  holding  a  valid  executory  lease,  executed 
by  tlie  land  owner  or  by  several  of  a  number  of  co-tenants,  has 
such  an  interest,  although  inchoate  in  the  land,  as  will  enable 
him  to  maintain  an  injunction  to  prevent  a  wrong-doer  fr(im 
committing  waste  by  the  extraction  of  oil  and  gas ;  and  it  makes 
no  difference  tliat  he  has  not  yet  perfected  his  own  right  to  ex- 
plore. ^'^  A  lessee  in  possession  may  maintain  a  suit  in  equity 
against  persons  claiming  under  leases  from  the  lessor  to  other 
persons,  and  may  have  their  leases  declared  a  cloud  ujDon  his 
title.^'^  A  preliminary  injunction  will  be  awarded  against  a 
lessor  where  he  has  made  a  re-entry  under  a  claim  of  forfeiture 
and  tlie  claim  is  disputed  on  every  ground  on  which  he  puts 
it.^^"  The  court,  in  such  an  instance  will  not  only  enjoin  the 
lessor,  but  it  will  compel  him  to  restore  the  premises  to  the 
condition  he  found  them  in  when  he  re-entered  upon  them,  even 
to  the  extent  of  compelling  him  to  restore  gas  pipe  lines  he  has 
severed,  until  hearing. '''^  But  the  court  should  not  go  too  far 
in  the  preliminary  injunction ;  it  being  sufficient,  as  a  rule,  to 
preserve  the  present  condition  until  final  hearing,  unless  gas  or 
oil  in  considerable  quantities  will  be  lost  if  further  steps  be  not 
taken.""*  The  OA\mer  of  the  land  or  the  lessee  may  enjoin  a 
stranger  who  is  threatening  to  put  down  an  oil  or  gas  well. 
"  An  action  for  damages  would  have  been  inadequate,  since  the 
damages  could  not  be  measured.     .     .     .     How  much  the  flow 

2i9Duffield    V.    Hue,    136    Pa.    St.  Erskine  v.   Forest  Oil   Co.,   80   Fed. 

602;   20  Atl.  Rep.  526;   Bettman  v.  Rep.  583. 

Harness,  42  W.  Va.  443 ;    26   S.   E.  222  Poterie  Gas  Co.  v.  Poterie,  153 

Rep.  271;  36  L.  R.  A.  566;  Citizens'  Pa.  St.  10;  25  Atl.  Rep.  1107;  Duf- 

Natural  Gas  Co.  v.   Shenango,  etc.,  field  v.  Rosenzweig,  144  Pa.  St.  520 ; 

Co.,    138   Pa.   St.   22;    20   Atl.   Rep.  23  Atl.  Rep.  4. 

947.  223  Poterie  Gas  Co.  v.  Poterie,  179 

220  Trees  v.  Eclipse  Oil  Co..  47  W.  Pa.  St.  68;  36  Atl.  Rep.  232;  Bus- 
Va.  107;  34  S.  E.  Rep.  933;  Allison's  kirk  v.  King,  72  Fed.  Rep.  22.  See 
Appeal,  77  Pa.  St.  221 ;  Natural  Gas  Black  Lick  Co.  v.  Saltsburg  Gas. 
Co.  V.  Philadelphia  Co.,  158  Pa.  St.  Co.,  139  Pa.  St.  448;  21  Atl.  Rep. 
317;    27    Atl.   Rep.    951;    Allegheny  432. 

Oil    Co.    V.    Snyder.    106    Fed.    Rep.  224  Bettman    v.    Harness.    42    W. 

764;  45  C.  C.  A.  604  (by  statute).  Va.  433;   26  S.  E.  Rep.  271;   36  L. 

221  Elk   Fork  Oil   and  Gas  Co.  v.  R.  A.  566. 
Jennings,    84    Fed.    Rep.    839.     See 


LEASES.  121 


of  appellant's  well  would  have  been  diminished  could  not  be 
determined;  the  damages  could  not  be  measured  in  money.'"'' 

§104.     Damages. 

A  failure  to   develop  tlie  leased  premises   may   render  the 
lessee  liable  to  the  lessor  to  an  action  for  the  recovery  of  dam- 
ages; and  usually  the  lessee  cannot  set  up  as  a  defense  that  it 
was  purely  optional  with  him  to  develop  such  premises.     Thus 
where  a  lease  required  the  payment  of  a  royalty  and  a  sum  of 
money,  operations  to  begin  and  a  well  to  be  completed  within 
fixed  periods  of  time,  containing  a  clause  that  on  failure  to  com- 
ply the  lessee  should  pay  a  fixed  sum  per  annum  during  such 
delay,  and  another  clause  tliat  a  failure  to  comply  with  or  make 
the  annual  payment  within  the  time  mentioned  the  lease  should 
be  void ;  it  was  held  that  a  failure  to  both  commence  operations 
and  to  make  the  payments  within  the  agreed  time  did  not  render 
the  lease  null  and  void,  but  it  only  became  such  from  the  expira- 
tion of  the  time  within  which  the  payment  was  to  be  made,  and 
therefore  the  lessee  was  liable  for  damages  sustained  by  his 
breach  of  the  covenants."^     But  where  the  lease  was  conditioned 
to  be  void  unless  the  lessee  should  do  something  in  the  way  of 
development  by  putting  do^vn  a  well  within  a  certain  time,  or 
pay  so  much  money  per  month,  yet  contained  no  covenant  to  do 
either ;  it  was  held  that  such  lessee  was  not  liable  in  damages 
for  a  failure  to  perform  the  conditions  named.''"     A  failure  to 
sink  a  sufiicient  number  of  wells  to  develop  the  territory  will 
render  tlie  lessee  liable  to  an  action  for  damages."'^     Where 
only  a  part  of  the  land  is  developed,  the  implied  covenant  to 
develop  it  all  is  no  gi'ound  of  forfeiture,  but  the  lessee  is  liable 
for  damages  for  a  failure  to  comply  with  the  covenant."^ 

225  Indianapolis  Natural  Gas  Co.  152  Pa.  St.  48;  31  W.  X.  C.  207;  25 
V.  Kibbey,  135  Ind.  357 ;  35  N.  E.  Atl.  Rep.  232,  distinguishing  Ray  v. 
Rep.  392.  See  Thomas  v.  Marble,  Gas  Co..  138  Pa.  St.  576;  20  Atl. 
etc.,  Co.,  58  Fed.  Rep.  485.  Rep.  1065. 

226  Galey   v.   Kellerraan,    123   Pa.  22s  Harness  v.  Eastern  Oil  Co.,  49 
St.  491;   23  W.  N.   C.  139;   16   Atl.  ^Y.  Va.  232;  38  S.  E.  Rep.  662. 
Rep     474;    Kleppner   v.   Lemon,   29  220  Harris    v.    Ohio    Coal    Co.,    57 
Pittsb.  L.  J.    (N.  S.)    346.  Ohio  St.  118;  48  X.  E.  Rep.  502. 

227  Glasgow  V.  Chartiers  Gas  Co., 


122  OIL    AND    GAS. 

§105.     Damages  for  failure  to  keep  covenant. 

Instead  of  declaring  a  forfeiture,  the  lessor  may  elect  to 
bring  an  action  for  a  failure  to  keep  or  perform  the  covenant 
broken;  and  he  may  recover  either  on  an  express  or  an  implied 
covenant.  For  the  breach  of  an  implied  covenant  to  reasonably 
operate  a  mine,  or  oil  or  gas  lease  he  has  a  cause  of  action.  If 
there  has  been  a  breach  of  an  express  covenant  in  part  only  he 
cannot  declare  a  forfeiture,  where  tlie  forfeiture  is  for  a  breach 
of  the  entire  covenant.  His  remedy  in  such  an  instance  is  an 
action  for  damages."^"  If  the  lease  provide  the  amount  of 
recovery,  that  will  be  the  measure  of  damages;  and  the  lessee 
cannot  insist  that  the  amount  of  damages  is  more  in  amount 
than  the  value  of  the  lease.^^^  Where  the  lease  was  to  the  effect 
that  a  well  should  be  put  down  to  a  certain  depth  by  a  certain 
time,  but  no  rent  was  reserved,  no  term  of  demise  was  stated, 
tliough  a  right  of  entry  for  condition  broken  was  reserved ;  and 
the  lessee  failed  to  put  do-\vn  the  well,  it  was  held  that  the 
lessor's  damages  were  only  nominal."^-  But  where  the  royalty 
reserved  was  one-eighth  of  the  oil  produced,  and  tJie  lease  con- 
tained a  covenant,  "  to  continue,  with  due  diligence  and  without 
delay,  to  prosecute  the  business  to  success  or  abandonment,  and 
if  successful,  to  prosecute  the  same  without  interruption  for 
the  common  benefit  of  the  parties  " ;  it  was  held  that  this  re- 
quired the  lessee  to  prosecute  the  business  to  an  extent,  consider- 
ing the  knowledge,  skill  and  appliances  available  at  the  time, 
it  could  reasonably  be  done  and  leave  the  lessee  a  profit.  In 
determining  the  measure  of  the  damages  for  a  failure  to  work 
the  leased  premises,  the  court  laid  down  the  following  rule: 
From  the  amount  of  oil  the  lessor  ought  to  have  received,  take 
the  amount  he  actually  received,  and  take  the  value  of  this  dif- 
ference at  the  time  it  should  have  been  delivered  to  him.     From 


230  Harris    v.    Ohio    Coal    Co.,    57  662;   Sharp  v.  Behr,   117   Fed.  Rep. 

Ohio  St.   118;   48  N.   E.  Rep.   502;  864. 

Blair  v.  Peck,  1  Penny   (Pa.),  247;  231  Qaley    v.    Kellerman,    123    Pa. 

Janes   v.    Emery   Oil    Co.,    1    Penny  St.   491;    16   Atl.   Rep.   474. 

(Pa.)     242;  Harness  v.  Eastern  Oil  232  Chamberlin   v.    Parker,    45    N. 

Co.,  49  W.  Va.  232;   38  S.  E.  Rep.  Y.    569. 


LEASES. 


12a 


this  amount  deduct  the  cost  of  producing  what  ought  to  have 
hcen  produced  at  the  time  under  the  circumstances  with  the  ap- 
pliances then  known,  and  add  to  this  remainder  interest  on  it 
from  the  time  when  the  oil  should  have  been  produced  to  the 
time  of  triaL"^ 

§106.     Damages  for  neglect  to  develop  or  operate  leased  premises. 

The  lessor  has  a  right  of  action  against  the  lessee  for  failure 
to  develop  the  leased  premises,  as  he  had  contracted  to  do ;  and 
the  measure  of  damages  is  what  the  lessor  was  to  receive  under 
the  contract,—  the  royalty,  as  a  rule,—  where  the  lessee  leaves 
it  in  such  condition,  in  case  of  a  test  well,  that  it  cannot  be  tested, 
and  the  failure  to  test  it  is  not  unavoidable,  or  the  lessee  left 
it  in  a  condition  tliat  it  can  be  tested  and  the  lessor  does  not 
know  if'     Where  a  party  purdiased  oil  lands,  agreeing  to 
bore  for  oil  and  within  a  year  complete  a  well,  and  if  oil  were 
found  in  paying  quantities,  to  drill  other  wells,  and  deliver  as 
royalty  to  tlie  vendor  a  certain  amount  realized  from  the  sale 
of  oil  and  gas  produced  from  all  the  wells,  it  was  held  that  the 
remedy  of  the  vendor  for  a  failure  on  the  part  of  the  purchaser 
to  keep  the  agreement,  was  an  action  for  damages  and  not  by 
way  of   forfeiture.''®     In  a   case  in  the  Federal   Court,    the 
following  langiiage  was  used :     "  But  it  is  contended  by  the 
appellee  that  the  clause  providing  a  forfeit  of  fifty  dollars  for 
failure    to    bore    the   well    within    ninety    days    provides    full 
compensation  for  failure  to  perform  the  condition.     As  a  matter 
of  fact,  tlie  fifty  dollars  was  not  paid  or  legally  tendered ;  but, 
inasmuch  as  the  grantor  had  declared  a  purpose  not  to  receive 
the  forfeit  money,  it  will  be  treated  as  if  it  had  been  tendered. 
The  question  whether  a  sum  of  money  stipulated  to  be  paid  is  a 
penalty  or  liquidated  damages  is  sometimes  difficult  of  deter- 
mination, tliere  being  no  criterion  of  universal  application.     It 

233  Bradford  Oil  Co.  v.  Blair.  113  etc.,   Co.    (W.   Va.),   43   S.   E.   Rep. 

Pa.  St.  83;  4  Atl.  Rep.  218.  128. 

235  McClay  v.  Western  Pennsylva-  236  Amnions    v.    South    Penn.    Oil 

nia   Gas   Co.,   201    Pa.    St.    197;    50  Co..  47  W.  Va.  610;   35  S.  E.  Rep. 

Atl.  Rep.  978.     See  Sharp  v.  Behr,  1004. 
117   Fed.  Rep.  864;   Core  v.  N.  Y., 


124  OH.    AND    GAS. 

depends  iijx>n  a  construction  of  tlie  whole  instrument,  the  inten- 
tion of  the  parties,  the  nature  of  tlie  act  to  be  performed,  and 
the  consequences  which  would  naturally  flow  from  its  non-per- 
formance. In  many  of  the  cases  where  oil  leases  have  come  be- 
fore the  courts,  the  doing  of  a  certain  thing,  or  the  payment  of 
rental  in  lieu  thereof,  is  stipulated  in  the  contract  in  a  way 
that  justifies  tJie  conclusion  that  the  parties  have  provided 
exact  and  just  compensation  by  way  of  liquidated  damages  for 
failure  of  performance  in  contracts,  where  parties  stipulated  in 
the  alternative,  and  are  free  to  those.  But  where  consequences 
likely  to  follow  non-performance  are  not  measurably  by  any 
exact  pecuniary  standard,  and  the  probable  damage  is  out  of  all 
proportion  to  the  amount  agreed  to  be  paid,  this  sum  should  be 
considered  a  penalty ;  and  such  we  hold  it  to  be  in  this  case, 
where  the  sum  of  fifty  dollars  is  stated  to  be  a  forfeiture.  It 
is  in  the  nature  of  a  security  for  the  performance,  and  cannot 
be  held  to  be  liquidated  damages  from  non-perfonnance."  ^" 

§107.     Damages  for  neglect  to  operate. —  Res  judicata. 

If  a  lessor  bring  suit  to  recover  arrears  of  a  portion  of  the 
oil  due  him  as  royalty,  a  judgment  of  recovery  will  bar  his 
claim  in  a  subsequent  suit  for  damages  for  the  lessee's  failure 
to  operate  the  premises."^® 

§108.     Damages  for  taking  oil  or  gas. 

If  the  lessee's  premises  be  invaded,  and  oil  or  gas  extracted 
from  them  by  sinking  wells  or  in  any  other  manner,  he  may 
recover  damages  from  the  wrong  doer.-^"  If  the  trespasser 
acted  in  good  faith,  the  measure  of  damages  when  the  suit  is  by 
the  owner  of  the  land  and  there  is  no  lease  involved,  is  the  value 

2"  Huggins  V.  Daley,  99  Fed.  Rep.  560 ;   and  Steelsmith  v.  Gartlan,  45 

G06;   40  C.   C.   A.   12;   48  L.   R.  A.  W.  Va.  27;   29   S.  E.  Rep.  978;   44 

320.     The  court  cited  French  v.  Ma-  L.  R.  A.   107. 

cale,  2  Dru.  and  W.  274;  Dooley  v.  23s  Hill  v.  Joy,   149   Pa.  St.  243; 

Watson,  1  Gray  414;  Foster  v.  Elk  24  Atl.  Rep.  293. 

Fork  Oil  and  Gas  Co.,  90  Fed.  Rep.  239  Diiffield  v.  Rosenzweig,  144  Pa. 

178;  61  U.  S.  App'.  576;  32  C.  C.  A.  St.  520;   23  Atl.  Rep.  4. 


I.EASES,  125 

of  tlie  oil  (or  gas)  as  it  lay  in  the  earth,  when  the  value  of 
the  land  has  not  been  lessened  by  his  operations  or  has  been 
increased  by  valuable  erections  placed  upon  it."*"  If  other 
wells  be  wrongfully  sunk  on  the  leased  premises,  the  lessee  may 
recover  the  difference  between  the  value  of  the  premises  to  him 
without  the  wells  and  their  value  to  him  with  such  wells."" 

§109.     Boundaries. —  Location  of  wells. 

As  a  general  rule  the  lessee  has  the  right  to  take  all  the  oil 
and  gas  under  the  leased   premises.     But  usually   he  is  not 
entitled  to  the  possession  of  the  entire  surface  of  the  leased 
tract ;  for  the  lease  provides,  generally,  that  his  possession  shall 
be  limited  to  a  certain  portion  of  the  leased  tract,  though  he  is 
entitled  to  all  the  oil  or  gas  under  the  surface  of  the  entire  tract, 
if  he  can  draw^  it  out  by  means  of  wells  sunk  in  those  portions 
of  the  tract  designated  for  his  use.     A  lease  of  eighty  acres, 
"  reserving  sixty  acres  around  the  buildings  on  said  premises," 
the  boundaries  to  be  designated  by  the  lessor,  is  not  so  indefinite 
as  to  defeat  an  action  for  the  rent  due  under  it,  the  lessor  being 
ready  at  all  times  to  locate  tlie  boundaries."*"     The  lessor  having 
failed  to  locate  the  boundaries,  it  was  held  that  he  had  waived 
his  right  to  declare  a  forfeiture  of  the  lease  on  the  ground  that 
the  lessee  had  not  begim  operations  within  the  time  designated. 
Adjoining  land  o^\Tiers  may  agree  that  they  will  not  drill  wells 
wnthin  a  certain  distance  of  the  boundary  lines  of  their  respec- 
tive tracts ;  and  the  promise  of  the  one  will  be  a  sufficient  consid- 
eration for  the  promise  of  the  other,  for  the  reason  that  the 
agreement  is  for  the  protection  of  their  respective  lands.     This 
agreement  will  be  protected  by  an  injunction."*^     A  law  pro- 
hibiting land  owners  taking  solid  minerals  within  a  named  dis- 
tance from  their  boundary  lines  is  valid,  being  only  a  restriction 

24oi>yke  V.  National  Transit  Co.,  Spaugh,  17  Ind.  App.  683;  46  N.  E. 

22  N.  Y.  App.  Div.   360;   49  N.  Y.  Rep.  691. 

Supp.  180.  243  Ware  v.  Langmade,  9  Ohio  C. 

24iDuffield  V.  Rosenzweig,  144  Pa.  C.  Kep.  85;  6  Ohio  Cir.  Dec.  43;  2 

St.  520;  23  Atl.  Rep.  4.  Ohio  Dec.  116. 

242  Indianapolis,      etc.,      Co.      v. 


126  OIL    AND    GAS. 

on  the  land  owners  for  tlieir  common  benefit.'**  In  a  snit  to 
settle  and  adjust  boundary  lines  of  a  lease  and  tract  of  land^ 
all  persons  having  an  interest  in  the  controversy  should  be  made 
parties  to  the  action."*^  If  an  oil  lease  give  the  lessor  the  right 
to  select  one  acre  on  which  a  test  well  is  to  be  drilled,  and  ho 
select  it,  and  the  lessee  drill  upon  it,  such  lessor  cannot  make  a 
second  selection  and  insist  that  the  lessee  put  down  another 
well.-**' 
§110.     Selection  of  site. 

Xot  infrequently  the  lessor,  or  the  lessor  and  lessee  jointly, 
is  to  select  the  site  for  the  well.  If  the  lessor  is  to  select  it,  and 
the  lessee  assents  to  the  selection,  the  former  will  be  bound."*^ 
The  same  is  true  where  the  lessor  is  to  select  parts  of  a  large 
tract  leased  upon  which  operations  may  be  carried  on,  according 
to  the  provisions  of  the  lease.'*^  If  the  lessor  is  to  make  the 
selection  with  the  lessee  of  the  tract  out  of  a  larger  tract  leased, 
but  he  has  not  done  so,  he  may  recover  rent  for  the  demised 
premises,  if  he  allege  and  prove  that  he  has  always  been  ready  to 
make  it,  and  the  neglect  of  the  lessee  to  join  with  him  in  making 
the  selection  will  not  defeat  the  action."*^  If  a  dispute  arise 
as  to  the  location  of  the  well,  whether  on  the  lands  or  not,  the 
jury  must  decide  the  question  as  one  of  fact.'^*' 

244  Maple  V.  John,  42  W.  Va.  30;  Spaugh,  supra.  See  Balfour  v.  Rus- 
24  S.  E.  Rep.  608;  32  L.  R.  A.  800.  sell,   167   Pa.  St.  287;   31  Atl.  Rep. 

245  Steelsmith  v.  Fisher  Oil  Co.,  570;  Duffield  v.  Hue,  136  Pa.  St. 
47  W.  Va.  391;   35  S.  E.  Rep.   15;  602;  20  Atl.  Rep.  C26. 

Moore  v.  Jennings,  47  W.  Va.  181 ;  250  Hamilton   v.   Pittock,    158   Pa. 

34  S.  E.  Rep.  793.  St.  457;   27  Atl.  Rep.   1079. 

246  Stahl  V.  Van  Vleck,  53  Ohio  A  lessee  agreed,  in  consideration 
St.  136;  41  N.  E.  Rep.  35.  See  that  the  lessor  relinquish  all  money 
Meeker  v.  Browning,  9  Ohio  C.  D.  stipulated  for,  for  the  location  of 
108;    17   Ohio  C.  C.  548.  additional  wells,  he  would  drill  ad- 

247  Stahl  V.  Van  Vleck,  53  Ohio  ditional  wells  within  a  time  stated. 
St.  136;  41  N.  E.  Rep.  35.  This  was  held  to  be  an  executed  re- 

248  Stahl  V.  Van  Vleck,  supra;  In-  lease  of  the  location  moneys  under 
dianapolis,  etc..  Gas  Co.  v.  Spaugh,  the  former  contract,  and  not  merely 
17  Ind.  App.  683;  46  N.  E.  Rep.  a  conditional  one,  which  remained 
691;  Diamond  Plate  Glass  Co.  v.  executory  until  the  new  wells  were 
Tennell,  22  Ind.  App.  132;  52  N.  E.  drilled  within  the  time  limited. 
Rep.   168.  Meeker  v.   Browning.  9  Ohio  C.   D. 

^*9  Indianapolis,   etc..   Gas   Co.   v.       108;  17  Ohio  C.  C.  Dee.  548. 


"LEASES.  127 

§111.     Number  of  wells. 

If  the  number  of  wells  to  be  drilled  are  specified  in  the  lease, 
there  is  no  room  for  judicial  interpretation  of  the  duty  of  the 
lessee  in  that  respect.  If  the  number  of  producing  wells  are 
named,  then  that  number  must  be  drilled,  unless  it  be  clearly 
shown  that  the  numl)er  fixed  cannot  be  obtained  on  the  premises, 
bj  showing'  that  some  of  those  drilled  were  dry  wells,  and  tluit 
to  drill  others  would  not  be  a  benefit  to  the  lessor.  If  the  num- 
ber of  wells  is  not  specified,  then  a  number  sufficient  to  develop 
the  ])remises  must  be  drilled ;  '^^  but  the  court  will  not  under- 
take to  direct  how  the  lessee  shall  work  the  premises,  or  how 
many  wells  shall  be  sunk;  and  the  lessor  cannot  claim  a  for- 
feiture simply  because  tlie  lessee  is  not  sufficiently  active  in 
developing  the  property.^^"  If  the  lessee  has  agreed  to  sink  a 
certain  number  of  wells,  he  cannot,  after  sinking  a  part  of  the 
number,  successfully  claim  that  it  would  be  useless  to  sink  the 
remainder,  on  the  gTOund  that  the  sinking  of  them  would  prob- 
ably reduce  the  flow  of  the  oil  or  gas  in  the  wells  already  sunk, 
and  his  profits  thereby  be  reduced  and  the  wells  probably  ren- 
dered valueless.'"^  A  lease  of  fifty-three  acres  in  1892  provided 
that  as  many  wells  should  be  drilled  "  as  may  be  reasonably 
necessary  to  secure  the  oil  for  the  common  advantage  of  both 
the  lessor  and  lessee."  Between  1892  and  1896  the  lessee 
drilled  four  wells  on  the  west  side  of  the  leased  premises,  which 
were  paying  wells,  and  one  on  the  east,  which  did  not  pay.  The 
distance  from  the  eastern  well  to  the  western  well  was  from  one 
thousand  to  twelve  hundred  feet.  Eight  hundred  feet  on  the 
north  and  east  of  the  leased  premises  wells  had  been  drilled 

251  Kleppner  v.  Lemon,  176  Pa.  Ohio  Oil  Co.  v.  Kelley,  9  Ohio  C.  C. 
St.  502;  38  W.  N.  C.  388;  35  Ail.  Rep.  511;  6  Ohio  Cir.  Dec.  470;  40 
Rep.  109;  27  Pittsb.  Leg.  J.  (N.  S.)  Wkly.  L.  Bull.  338;  3  Ohio  Dec.  186. 
21 ;  Aye  v.  Philadelphia  Co.,  193  Pa.  See  Pennsylvania  case. 

St.  451;  44  Atl.  Rep.  555;  Kleppner  253  Young   v.    Equitable    Gas    Co., 

V.  Lemon,  29  Pittsb.  L.  J.    (N.  S.)  5. Pa.  Super.  Ct.  Rep.  232;  28  Pittsb. 

346;     Gadbury    v.    Ohio,    etc.,    Co.  L.  J.    (N.  S.)    75;  41  W.  N.  C.  24; 

{Ind.),  67  N.  E.  Rep.  259.  Ahrns  v.  Chartiers  Valley  Gas  Co., 

252  Baldwin  v.  Ohio  Oil  Co.,  13  Ohio  188  Pa.  St.  249;  41  Atl.  Rep.  739. 
Cir.  Ct.  Rep.  519;   7  Ohio  Dec.  .50; 


128  OIL    AND    GAS. 

whicli  were  producing  in  paying  quantities.  There  was  proof 
that  a  well  would  draw  oil  from  the  sand  a  distance  of  live  hun- 
dred feet.  x\n  action  was  brought  to  have  the  lease  declared 
forfeited,  on  the  ground  that  the  lessee  refused  to  drill  another 
well  on  the  eastern  side  of  the  premises.  The  court  required 
the  lessee  to  file  with  it  a  stipulation  to  commence  a  well  on  the 
eastern  portion  of  the  premises  within  twenty  days,  or  have  the- 
lease  declared  forfeited."^*  But  the  the  case  on  appeal  was  re- 
versed, on  the  ground  that  the  lessee  cannot  be  compelled,  under 
an  implied  covenant  to  develop  the  premises,  to  jiut  down  a 
well  on  the  other  half,  without  clearly  showing  that  he  is  not 
acting  in  good  faith  on  his  business  judgment,  but  is  acting 
fraudulently,  with  the  intent  to  obtain  a  dishonest  advantage."^'' 
Where  the  agreement  was  for  two  test  wells,  and  the  first  one 
drilled  demonstrated  that  the  pTemises  were  unproductive,  it  was 
held  that  the  lessee  w^as  not  bound  to  drill  the  second  well  or 
pay  the  cash  rental  provided  for  in  the  lease ;  for  as  the  lands 
were  unproductive,  there  was  nothing  in  the  contract  to  compel 
him  to  drill  a  second  well  or  pay  the  rent."^''  If  the  lessee  does 
not  drill  the  requisite  number  of  wells,  so  as  to  fully  develop 
the  land,  where  the  number  of  wells  is  not  designated  in  the 
lease,  the  lessor  has  his  action  against  him  for  damages.'^' 
But  if  the  lease  provides  the  number  of  wells  that  shall  be 
drilled,  there  is  no  implication  that  more  than  the  number  speci- 
fied shall  be  drilled  where  it  should  turn  out  that  not  enoudi 
was  provided  for  to  develop  the  entire  premises. '^^  In  a  Penn- 
sylvania case  the  following  language  was  used  with  reference 
to  the  number  of  wells  that  must  be  drilled :  "  It  is  an  implied 
condition  of  every  lease  of  land  for  the  production  of  oil  there- 

254  Young  V.  Vandergrift,  30  119;  reversing  30  Pittsb.  Leg.  (N. 
Pittsb.  Leg.  J.    (N.  S.)    39;   Colgan       S.)  213. 

V.  Forest  Oil  Co.,  30  Pittsb.  Leg.  J.  25c  Kenton    Gas,    etc.,    Co.    v.    Or- 

(N.   S.)    68    (almost   identical   with  wick,  21  Ohio  Cir.  Ct.  Rep.  274;  11 

preceding       case)  ;       Kleppner       v.  Ohio  C.  D.  786.     See  Sec.  112. 

Lemon,  supra;  Ohio  Oil  Co.  v.  Har-  -'>"!  Harness  v.  Eastern  Oil  Co.,  49 

ris,  1   Ohio  N.  P.   132;    1  Ohio  Dec.  W.  Va.  232;  38  fe.  E.  Rep.  662. 

157.  259  Stoddard  v.  Emery,  128  Pa.  St. 

255  Colgan  V.  Forest  Oil  Co.,  194  436;  18  Atl.  Rep.  339;  24  VV.  N.  C. 
Pa.  St.  243;  75  Am.  St.  Rep.  695;  566;  Harris  v.  Ohio  Coal  Co.,  57 
30  Pittsb.  Leg.  J.  221;  45  Atl.  Rep.  Ohio  St.  118;  48  N.  E.  Rep.  502. 


LEASES.  129 

from  that  wlien  the  existence  of  oil  in  paying  quantities  is 
made  apparent  the  lessee  shall  put  dowm  as  many  wells  as  may 
be  reasonably  necessary  to  secure  the  oil  for  the  common  ad- 
vantage of  both  lessor  and  lessee.  In  determining  when  and 
where  such  wells  shall  be  located,  regard  must  be  had  to  the 
operation  on  adjoining  lands;  and  to  the  well  kno^vn  fact  that 
a  well  will  drain  a  territory  of  much  larger  extent  when  the 
sand-rock  in  which  the  oil  or  gas  is  found  is  of  coarse  and  loose 
texture  than  when  it  is  of  fine  gi'ain  and  compact  character. 
Whatever  ordinary  knowledge  and  care  would  dictate  as  the 
proper  thing  to  be  done  for  the  interests  of  both  lessor  and  les- 
see under  any  given  circumstances  is  that  which  the  law  re- 
quires to  be  done  as  an  implied  stipulation  of  the  contract."  "®° 

§112.     Number  of  wells. —  Protecting  lines. 

Elsewhere  has  been  discussed  the  numl>er  of  wells  tJie  lessee 
is  required  to  drill. "°^  Of  course,  if  the  number  is  specified, 
that  determines  the  rights  of  the  parties  in  this  connection.'*'^ 
But  if  the  number  is  not  specified,  then  the  lessee  must  drill 
and  operate  enough  as  is  ordinarily  required  for  the  production 
of  the  oil  contained  in  such  lands,  and  afford  ordinary  proection 
to  the  lines.-"^  If  a  single  well  demonstrates  the  fact  that  tliere 
is  no  oil,  in  case  of  an  oil  lease,  or  no  gas,  in  case  of  a  gas  lease, 
"  the  contract  is  at  an  end  as  soon  as  such  first  well  is  abandoned 
as  unsuccessful."  ""^^ 

26oKleppner  v.  Lemon,  supra.  and  Parish  Fork  Oil  Co.  v.  Bridge- 

Xeglect  to  use  diligence  and  good  water  Gas  Co..  51   W.  Va.  583;   42 

faith    in    the    development    of    the  S.  E.  Rep.  655. 

leased    premises    gives    a    cause    of  263  Harris    v.    Ohio    Oil    Co.,    57 

action   to   the   lessor.     Kleppner   v.  Ohio  St.   118;    48   N.   E.  Rep.   502; 

Lemon,  29  Pittsb.  L.J.  (N.  S.)  346;  Kleppner    v.    Lemon,    176    Pa.    St. 

affirmed   198   Pa.    St.   430;    48   Atl.  502;  35  Atl.  Rep.  109;  Ohio  Oil  Co. 

Rep.  483;  Gadbury  v.  Ohio,  etc.,  Gas  v.  Kelly,  9  Ohio  C.  Ct.  Rep.  511;   6 

Co.   (Ind.),  67  N.  E.  Rep.  259.  Ohio   Cir.    Ct.   Dec.   470;    40   Wkly. 

261  See    Index.  L.  Bvill.  338;   3  Ohio  Dec.  186. 

262Colgan  V.  Forest  Oil   Co..   194  264  Venture  Oil  Co.  v.  Fretts.  152 

Pa.   St.   234;    45  Atl.   Rep.    119;    30  Pa.    St.    451;     25    Atl.    Rep.     732; 

Pittsb.  L.  J.    (N.   S.)    213:    75  Am.  Steelsmith    v.    Gartlan,    45    W.    Va. 

St.    Rep.    695.     See    Stahl    v.    Van  27;  29  S.  E.  Rep.  978;  44  L.  R.  A. 

Vleck,   53   Ohio   St.    136;    41    N.   E.  107. 
Rep.    35;    33    \Ykly.    L.    Bull.    335; 


130  OIL    AND    GAS. 

§113.     Test  Wells. —  Excuse  for  not  drilling. 

The  name  "  test  well  "  is  practically  its  own  definition,  or  at 
least  suggests  its  meaning,  it  is  a  well  pnt  down  on  the  leased 
premises  to  determine  whether  or  not  oil  or  gas  exists  thereon, 
and  usually  whether  it  exists  in  paying  quantities.-''^  Not  in- 
frequently a  lease  provides  that  a  test  well  shall  be  drilled 
within  a  certain  length  of  time  after  it  is  granted ;  and  when 
such  requirement  is  inserted  it  must  he  complied  with,  or  the 
lessee  will  forfeit  his  right  to  operate  on  the  premises.  In 
leases  for  mining  solid  minerals  it  is  permissible  to  show  as  a 
defense  in  an  action  to  recover  damages  for  not  opening  a  mine, 
that  there  is  no  mineral  beneath  the  surface,  and  the  lessee  may 
avail  himself  of  that  defense  and  show  that  such  is  the  fact,  he 
having  the  burden  to  show  there  is  no  mineral. ■*"'  But  in  the 
case  of  a  gas  or  oil  lease  a  defense  that  there  is  no  gas  or  oil 
beneath  the  surface  cannot  be  shown  in  any  other  way  than  by 
sinking  a  well,  unless,  of  course,  the  plaintiff  admits  that  such 
is  tlie  case,  thereby  waiving  his  right  to  insist  upon  the  well  as 
a  test.  It  cannot  be  shown  that  the  adjacent  territory,  or  even 
the  entire  adjacent  surrounding  territory  has  been  drilled  for 
gas  or  oil,  in  the  most  thorough  manner  and  none  found.  ]n  a 
Pennsylvania  case  the  following  language  was  used : 

.  "  The  averment  in  the  affidavit  of  defense  that  it  had  been 
'  ascertained  by  methods  practiced  and  approved  by  men  skilled 
in  the  business,  that  neither  carbon  oil  nor  gas  existed  in  thi^ 
land  leased,'  and  the  view,  based  thereon,  urged  with  so  much 
force  by  the  distinguished  counsel,  that  it  must  now  be  ac- 
cepted as  a  demonstration  of  science  that  putting  down  a  well 
on  land  shown  by  exploration  of  neighboring  territory  to  be 
dry,  is  a  useless  expense  and  damage,  and  that  parties  in  con- 
tracting on  the  subject  must  be  considered  to  have  had  this  fact 
in  mind,  would  be  a  strong  argument  to  the  jury,  if  the  case 
was  one  for  them,  that  the  plaintiff  had  suffered  no  actual  dani- 

2C5  Petroleum    Co.    v.    Coal,    etc.,  was  held  that  the  lessee  is  not  lin- 

Cc,  89  Tenn.  381;  18  S.  W.  Rep.  65.  ble    unless    there   was   a   reasonable 

266  Cook  V.  Andrews,  36  Ohio  St.  probability    that    the    lessor    wotild 

174.  be  benefited  by  drilling  the  well. 

In  Bell  V.  Truit,  9  Bush.  257,  it 


LEASES.  131 

ages  by  the  defendant's  default.  But  the  conclusive  answer  in 
the  present  case  is  tliat  the  parties  have  clearly  stipulated  for 
the  mode  in  which  the  trial  shall  be  made,  and  it  is  to  be  by  a 
well  on  this  land.  There  is  no  room  for  science,  any  more 
than  there  is  for  a  jury,  to  say  that  it  will  be  of  no  use  to  do  it ; 
the  parties  have  explicitly  agreed  on  the  exact  thing  to  be  done, 
and  the  exact  amount  to  be  paid  for  failure  to  do  it.  The 
scientific  nature  of  mining  in  the  present  day,  and  the  certainty 
of  scientific  conclusions  from  exploration  of  neighboring  terri- 
tory, may  be  fully  recognized  and  admitted,  but  nevertheless, 
liopeful  parties  may  desire  an  actual  test,  and  if  we  are  to  take 
notice  as  counsel  suggest,  of  facts  in  the  history  of  oil  mining 
we  know  that  some  of  the  most  extraordinary  and  profitable 
productions  have  been  the  result  of  '  wuld-catting  '  in  unpromis- 
ing fields.  But  it  is  enough  for  us  that  the  parties  have  con- 
tracted for  one  thing  to  be  done  and  the  damages  for  not  doing 
it.  Under  such  circumstances  it  is  never  open  to  tlie  covenantor 
to  say  that  the  thing  would  be  of  no  value  to  the  covenantee  if 
it  were  done."  ""^ 

Where  the  agreement  was  that  a  well  should  be  completed 
witliin  a  year,  and  if  not,  an  annual  rental  paid ;  if  the  rental 
was  not  paid,  the  lease  to  be  null  and  void ;  and  a  second  well 
to  be  completed  within  two  years,  and  on  failure  to  drill  it,  a 
certain  sum  to  be  paid  or  the  lease  forfeited,  it  was  held  to  be 
no  defense,  in  an  action  to  recover  their  several  sums  that  there 
was  no  oil  or  gas  on  the  leased  premise,  and  for  that  reason  the 
lease  became  void  and  of  no  effect.  The  basis  for  the  decision 
was  that  the  lessor  and  lessee  had  fixed  upon  a  test,  which  was. 
the  drilling  of  two  wells ;  and  that  no  other  could  be  substituted 
by  the  lessee  without  the  lessor's  consent.  It  was  admitted, 
however,  that  the  lease  could  have  been  so  drawn  as  to  admit 
the  defense  attempted  to  be  set  up  by  the  lessee,  namely,  by 
showing  otherwise  than  by  test  wells  that  there  was  no  oil  or 
gas  in  the  leased  premises."*'^     If  the  lease  provides  for  a  test 

267  Cochran   v.    Pew,    159   Pa.    St.  268  Gibson  v.   Oliver,   158   Pa.   St. 

184;  28  Atl.  Pep.  219.  See  Springer  277;    27    Atl.    Rep.    961;    Johnston, 

V.   Citizens'   National    Gas   Co.,    145  etc.,   R.   R.   Co.   v.   Egbert,    152   Pa. 

Pa.  St.  430;  22  Atl.  Rep.  986.  St.  53;  25  Atl.  Rep.  151. 


132  OIL    AND    GAS. 

well,  and  one  is  drilled  which  proves  to  be  a  dry  well,  yet  the 
lessee  is  bound  to  bore  other  wells  nntil  he  has  fully  developed 
the  territory.-'^''  If  two  wells  were  to  be  put  down  by  a  certain 
time,  the  putting  down  one  well,  which  proved  to  be  a  dry  well, 
will  not  relieve  the  lessee  from  the  payment  of  rent,  when  two 
wells  were  to  be  put  down  by  a  certain  time  or  rent  to  be  paid.-"^° 
If  there  be  several  tracts  of  land  leased,  with  a  royalty  for  each 
well,  each  tract  will  be  treated  as  a  separate  tract,  and  a  well 
must  be  put  down  for  each  of  them  or  rent  be  paid.^"  If  the 
lease  bind  the  lessee  to  test  the  land  within  three  years,  and  to 
work  it  within  a  reasonable  time,  both  provisions  are  conditions 
on  which  the  lease  depends."^"  The  test  well  cannot  be  put 
down  on  an  adjoining  premises,  especially  if  some  distance 
from  the  line  of  the  leased  territory ;  but  it  must  be  put  down 
on  the  premises  leased.-^'^  An  instrument  conveyed  the  oil  and 
gas  under  forty  acres  of  land,  with  the  right  to  enter  and  drill 
and  operate  for  oil  or  gas,  and  maintain  all  structures  and  lay 
all  pipes  necessary  for  its  production  and  transportation,  and 
leasing  one  acre  for  a  test  well,  with  a  provision  that  the  lessee 
should  commence  operations  within  thirty  days,  and  complete 
a  Avell  in  thirty  days  after  drilling  was  commenced,  and  if  he 
failed  to  do  so,  he  should  pay  annually  a  specified  price  "  per 
acre  "  until  the  well  was  completed ;  it  was  held  that  if  no  well 
was  completed,  the  lessee  must  pay  the  price  fixed  "  per  acre  " 
for  forty  acres,  instead  of  only  one  acre.^^* 

§114.     Test  well,  when  need  not  be  drilled. 

Notwithstanding  from   what  has  been   said  concerning  the 
duty  to  drill  a  "  test  well,"  it  has  been  held  that  the  circum- 

269  Aye   V.    Philadelphia    Co.,    193  273  Carnegie    Natural    Gas    Co.   v. 

Pa.  St.  451;  44  All.  Rep.  55.5.  Philadelphia   Co.,   158   Pa.   St.   317; 

27oAhrns  v.  Chartiers  Valley  Gas  27  Atl.  Rep.  951. 

Co.,   188  Pa.  St.  249;   41  Atl.   Rep.  2-4  Columbian  Oil  Co.  v.  Blake,  13 

739.  Ind.  App.  680;  42  N.  E.  Rep.  234. 

2"i  Johnston,    etc.,    R.    R.    Co.    v.  As   to   time   to   return  and   make 

Egbert,  152  Pa.  St.  53;  25  Atl.  Rep.  further    developments,    under    pccu- 

151.  liar     circumstances,     see     Henne    v. 

2T2  Petroleum    v.    Coal,    etc.,    Co.,  South  Pcnn.  Oil  Co.,  52  W.  Va.  — ; 

89  Tenn.  181;   18  S.  W.  Rep.  65.  43  S.  E.  Rep.  147. 


LEASES.  133 

stances  may  be  such  as  to  excuse  the  drilling  of  such  a  well. 
Thus,  several  owners  of  leases  divided  them.  Several  of  these 
owners,  who  became  defendants  in  a  suit,  gave  the  other  own- 
ers, who  became  the  plaintiffs,  an  agreement  binding  themselves 
to  pay  one  thousand  dollars  if  the  oil  well^  on  the  premises 
transferred  to  them  should  be  unproductive;  and  an  unpro- 
ductive well  was  defined  as  one  in  which  oil  was  not  produced 
in  paying  quantities.  Without  drilling  any  well,  the  plaintiffs 
sued  the  defendants  on  the  contract,  alleging  that  the  territoiy 
was  unproductive ;  and  to  prove  that  assertion,  offered  evidence 
that  the  wells  drilled  through  the  stratum  in  which  oil,  Avhen 
found  in  that  county  (and  it  seldom  was  found),  cost  about 
three  thousand  dollars,  and  even  then  only  a  trace  of  oil  had 
been  discovered.  It  was  held  that  this  was  sufficient  to  show 
that  the  wells  would  be  unproductive  and  dry,  and  to  excuse 
the  plaintiffs  from  digging  a  well  in  order  to  demonstrate  the 
barrenness  of  the  premises  in  the  production  of  oil.  In  passing 
on  the  case  the  following  language  was  used: 

"  If  the  testimony  establishes  the  proposition  that  the  plain- 
tiffs pushed  their  investigations  sufficiently  to  show  that  neither 
the  iSTelson  nor  Dodson  well  was  one  in  which  oil  could  be  pro- 
duced in  paying  quantities,  they  are  entitled  to  recover.  Their 
right  cannot  be  defeated  by  proof  that  a  trace  of  oil  was  discov- 
ered or  even  by  proof  that  one  of  the  wells  might  be  made  to 
produce  a  few  barrels,  for  such  production  was  not  sufficient  to 
make  it  a  paying  well.  The  Nelson  well  was  put  doA\Ti  1,600 
feet.  The  Dodson  well  1,377  feet.  Oil  in  Allegheny  County 
is  found,  if  at  all,  in  the  third  sand.  Both  of  these  wells  were 
drilled  through  the  third  sand,  and  little,  if  any,  oil  was  discov- 
ered. Subsequent  developments  still  further  demonstrated  their 
unproductiveness.  They  are  surrounded  by  a  circle  of  dry 
Iioles.  Xo  oil  has  been  found  in  their  vicinity.  The  plaintiffs 
are  criticised  because  the  wells  '  were  not  shot,  torpedoed  or 
tubed,'  but  it  would  seem  that  it  is  not  necessary  to  do  this  unless 
the  drilling  shows  some  promise  of  oil.  A  torpedo  may  make 
oil  flow  more  freely,  but  it  will  not  produce  oil  from  barren 
sand.  There  Avas  no  possible  motive  for  the  plaintiffs  to  omit 
anything  required  to  make  the  wells  a  success.    It  was  manifestly 


134  OIL    AND    GAS. 

for  their  interest  that  the  wells  should  pay.  There  is  no  direct 
proof  as  to  the  amount  to  be  paid  for  drilling  .the  two  wells,  but 
if  it  were  at  the  rate  which  the  evidence  shows  was  paid  for 
similar  wells  in  Allegheny  County,  the  plaintiffs  were  obligated 
to  pay  nearly  $3,000.  The  comparatively  small  sum  which 
they  were  to  receive  from  the  defendants  in  case  the  wells 
proved  unproductive  was  no  inducement  to  them  to  stop  the 
work  until  every  reasonable  test  had  been  made.  Every  in- 
centive was  in  this  direction.  If  the  wells  proved  successful, 
it  meant  a  fortune  to  the  plaintiffs.  If  they  failed,  it  meant  a 
large  loss  even  after  the  $1,000  had  been  paid  by  tlie  defend- 
ants. I  am  satisfied  that  the  plaintiffs  did  all  that  the  agree- 
ment required,  and  that  nothing  which  they  could  have  done 
would  have  developed  oil  in  paying  quantities  in  either  of  the 
wells  in  question."  ''^ 

§115.     Test  well. —  Depth. 

"  Can  it  be  said  that,  in  order  to  commence  operations  for  a 
test  well,  the  drill  must  actually  commence  to  penetrate  the 
rock  ?  I  do  not  so  understand  the  meaning  of  the  expression 
construed  in  connection  with  the  facts  presented  by  the  record. 
In  many  places,  in  order  to  sink  a  well  it  is  necessary  that  some 
sort  of  wooden  or  metallic  casing  be  provided  for  the  purpose  of 
excluding  the  soil  and  clay  which  must  be  passed  through  before 
the  rock  is  reached ;  and  it  would  hardly  be  contended  that  the 
purchase  and  provision  of  the  necessary  material  for  such  casing 
or  cribbing  was  not  an  important  step  in  putting  down  the  well. 
Webster  defines  the  word  '  operation '  as  '  an  effect  brought 
about  in  connection  with  a  definite  plan  ' ;  and,  in  giving  the 
interpretation  ordinarily  ascribed  to  the  words  '  to  commence 
operations  ' —  that  is,  applying  to  the  words  their  common  ac- 
ceptation —  I  would  understand  the  expression  to  mean  the 
perfomiance  of  some  act  which  has  a  tendency  to  produce  an 
intended  resitlt.  For  instance,  if  a  man  had  determined  to  erect 
a  brick  house,  and,  in  pursuance  of  that  design,  had  quarried 
the  rock  on  his  own  land  to  be  used  in  the  cellar  walls  and 

275  Rice  V.  Ege,  42  Fed.  Rep.  661. 


LEASES. 


Idl 


foundation,  and  had  burned  a  kiln  of  brick  on  tlie  same  prem- 
ises for  tlie  purposes  of  constructing  the  walls  and  chimneys,  it 
surely  could  not  be  said  that  he  had'  not  commenced  operations, 
although  the  roads  might  then  be  in  such  a  condition  as  to  pre- 
vent him  from  hauling  the  stone  and  brick  to  the  place  he  had 
selected  for  its  location.  Another  familiar  instance  that  may 
serve  the  purpose  of  illustration  is  the  erection  of  locks  and 
dams  for  the  purpose  of  improving  navigation  by  increasing  the 
depth  of  the  water.  .  .  .  When  the  location  of  the  lock 
has  been  selected  and  stone  has  been  quarried  and  prepared, 
although 'it  has  not  been  hauled  to  the  location  and  no  excava- 
tions have  been  made  to  receive  it,  we  would  not  be  warranted 
in  saying  that  operations  had  not  been  commenced  for  the  con- 
struction of  the  lock.  And  again,  where  a  building  has  been 
destroyed  by  fire,  how  frequently  do  we  hear  it  remarked  that 
the  owner  commenced  operations  at  once  for  the  construction  of 
another  by  clearing  away  the  debris  and  contracting  for  the 
material  with  which  to  rebuild  tlie  structure  ?  The  terms  of 
the  covenant  contained  in  said  lease  must  be  regarded  as  hav- 
ing been  complied  with,  no  matter  how  slightly  may  have  been 
the  commencement  of  any  portion  of  the  work  which  was  a 
necessary  and  indispensable  part  of  the  work  required  in  put- 
ting down  the  test  well."  "'*' 

§116.     Lessor  and  lessee  by  mistake  locating  well  on  stranger's 
land. 

Tf  the  lessee  and  lessor  by  mutual  mistake  locate  a  well  out- 
side of  the  leased  premises  and  on  a  stranger's  land,  the  lessor 
cannot  claim  any  part  of  the  oil  or  gas  as  royalty,  or  rent  for 
the  well.^'"' 

§117.     "  Shooting  "  well. 

Unless  some  statute  prevent  it,  there  is  nothing  to  prevent  a 
well  owner  from  "'  shooting  "  it,  in  order  to  increase  the  flow  of 

2Tr.  Floming   Oil    and    Gas    Co.    v.  See  ^Marshall   v.   Mellon,   26   Pittsb. 

South  Penn.  Oil  Co.,  37  W.  Va.  645;  L.  J.    (X.   S.)    290;    17  Pa.  Co.  Ct. 

17  S.  E.  Rep.  20.i.  Kep.  3GG. 

277  Mays  V.  Dwicrht.  82  Pa.  St.  462. 


136  OIL    AND    GAS. 

gas  or  oil,  and  even  though  it  has  the  effect  to  drain  the  oil  or 
gas  from  his  adjoining  neighbor's  premises."'^  Bnt  the  owner 
may  not  ''  shoot "  his  well  if  it  is  sitnated  in  the  center  of  a 
thickly  populated  city  where  he  cannot  collect  the  necessary 
quantity  of  explosives  to  "  shoot "  it,  without  endangering  the 
lives  and  property  of  those  who  have  no  connection  with  his 
operations.  In  such  an  instance  he  must  he  content  witli  such 
flow  of  gas  or  oil  as  can  be  obtained  without  such  '^  shooting  " ; 
and  an  injunction  will  lie  against  him  to  prevent  the  accumu- 
lation or  use  of  the  explosives."'"  So  if  a  well  is  situated  so 
close  to  a  dwelling  house  as  to  endanger  the  house  or'  its  occu- 
pants, or  even  any  building  of  value,  if  it  be  "  shot,"  the  owner 
of  such  well  may  not  "  shoot  "  it ;  and  if  he  attempt  or  threaten 
to  do  so,  he  may  be  enjoined."®" 

§118.     Oil  lease,  who  entitled  to  gas. 

Under  a  lease  giving  the  right  to  drill  and  "  gather  "  "  all 
oil  or  gases  "  on  the  leased  premises,  in  consideration  of  a  part 
of  the  oil  found,  the  lessee  is  entitled  to  all  the  gas  found. "®^ 
In  passing  on  this  question,  tlie  West  Virginia  Supreme  Court 
used  the  following  language : 

"  While  the  grant  is  for  specific  purpose  of  mining  for  and 
removing  carbon  oil  and  for  none  other,  still  there  is  neces- 
sarily included  in  this  grant,  all  the  incidents  essentially  or 
naturally  pertaining  to  its  enjoyment.  Tnclude<l  in  these  are 
the  elements  such  as  light,  air  and  water.  And  having  the 
legal  right  to  enter  upon  and  occupy  any  portion  of  the  prem- 
ises,   the    appellant   could,    without   becoming    a    trespasser   or 

27S  People's  Gas  Co.  v.  Tyner,  131  2si  Eaton  v.   Wilcox,  42  Hun  Gl; 

Ind.  277 ;   31   N.  E.  Rep.  59 ;    IG  L.  Wood  County,  etc.,  Co.  v.  West  Vir- 

R.   A.   443;    Tyner   v.   People's   Gas  ginia,  etc.,  Co..  28  W.  Va.  210;   57 

Co.,  131  Ind.  408;  31  N.  E.  Rep.  Gl.  Am.  Rep.   G.in.      j-!ut  see  Kitchen  v. 

2V0  People's  Gas  Co.  v.  Tyner,  su-  Smith,    101    Pa.    St.    452;    Kier    v. 

prn.     Tyner  v.  People's  Gas  Co.,  su-  Peterson,  41   Pa.  St.  357;   Truby  v. 

pra.  Palmer,  4  Cent.  Rep.    (Pa.)    925;    G 

280  People's  Gas  Co.  v.  Tyner,  su-  Atl.  Rep.    74;   Palmer  v.  Truby.   136 

pra.     Windfall   Mfg.   Co.   v.   Patter-  Pa.  St.  556;   20  Atl.  Rep.  51G.     Sou 

son,    148   Ind.   414;    47   N.   E.   Rep.  Burton  v.  Forest  Oil  Co.    (Pa.),  54 

2;   37   L.   R.  A.  381.  Atl.   Rep.   266. 


LEASES. 


137 


incurring  any  liability  to  tlie  lessors,  use  and  ap'propTiate  any- 
thing it  might  find  thereon,  which  is  not  the  property  of  an- 
other, sucli  as  animals  ferae  naturae,  or  waters  percolating 
through  the  land,  even  though  hy  such  use  and  appropriation 
it  may  deprive  another,  having  an  equal  right,  of  the  power  to 
do  so.  These  are  not  the  subjects  of  absolute  property,  and 
being  therefore  jui^c  naturae  capable  of  qualified  ownership 
only,  they  belong  to  him  who  first  appropriates  them.  If  the 
hydrocarbon  or  natural  gas  now  in  controversy  belongs  to  the 
class  of  things  which  are  incapable  of  being  absolute  property, 
but  are  the  subject  of  qualified  property  only,  such  as  those 
above  mentioned,  then  it  is  clear  this  gas  was  not  the  property 
of  the  plaintiff,  and  the  appellant  was  not  liable  for  its  use  and 
appropriation ;  but  if,  on  the  other  hand,  said  gas  is  susceptible 
of  absolute  ownership,  then  it  is  a  part  of  the  realty  of  the 
plaintiff,  to  which-  the  appellant  has  no  right  under  said  lease, 
and  is,  therefore,  liable  to  the  plaintiff  for  the  value  of  the 
same.  The  important  and  decisive  inquiry  in  this  cause  is, 
therefore :  To  which  category  does  hydrocarbon  gas  belong  ? 
In  the  article  on  ^  Gas  and  Gas  Lighting,'  in  tlie  Encyclopedia 
Britannica,  it  is  stated  that  inflammable  gas  is  fonued  in  great 
abundance  within  the  earth  in  connection  with  carbonaceous 
deposits,  such  as  coal  and  petroleum ;  and  similar  accumula- 
tions not  unfrequently  occur  in  connection  with  deposits  of 
rock-salt;  the  gases  from  any  of  these  sources,  escaping  by 
means  of  fissures  or  seams  to  the  open  air,  may  be  collected  and 
burned  in  suitable  arrangements.  Thus  the  '  eternal  fires  '  of 
Baku,  on  the  shores  of  the  Caspian  Sea,  which  have  been  known 
as  burning  from  remote  ages,  are  due  to  gaseous  hydrocarbons 
issuing  from  and  through  petroleum  dejwsits.  In  tlie  province 
of  Szechuen,  in  China,  gas  is  obtained  from  beds  of  rock-salt  at 
a  dep'tli  of  1,500  or  1,600  feet;  being  brought  to  the  surface,  it 
is  convej'ed  in  bamboo  tubes  and  used  for  lighting  as  well  as 
for  evaporating  brine;  and  it  is  asserted  tliat  the  Chinese  used 
this  naturally  evolved  gas  as  an  illuminant  long  before  gas  light- 
ing was  introduced  among  European  nations.  .  .  .  It  is 
apparent  from  this  history  of  the  nature  and  properties  of  nat- 
ural gas  that  it  partakes  more  nearly  of  the  character  of  the 


138  OIL    AND    GAS. 

elements,  air  and  water,  than  it  does  of  those  things  which  arc 
the  subject  of  absohite  property.  .  .  .  The  right  of  appro- 
priation is  so  absolute  in  tlie  case  of  water  flowing  under  ground 
that  if  the  owner  of  land  in  digging  a  well  or  cellar  or  working 
a  mine  on  his  o\vti  premises  cuts  off  the  water,  which  by  per- 
colation supplies  his  neighbor's  well  and  thereby  diverts  it 
into  his  own  or  drains  the  well  of  his  neighbor,  the  latter  is 
without  remedy;  it  is  dmnnum  absque  injuria,  if  not  negli- 
gently or  maliciously  done.  If  this  were  an  open  spring  pro- 
ducing oil  and  gas  or  such  a  natural  emission  of  gas  as  that  at 
Bloomfield,  in  New  York,  or  that  at  the  Burning  Spring,  in 
Wirt  County,  West  Virginia,  instead  of  a  well  1,000  feet  deep, 
there  could  be  no  more  question,  it  seems  to  me,  as  to  tlie  riglit 
of  the  lessee  to  appropriate  the  gas  under  the  provisions  of  tliis 
lease  than  there  is  of  his  right  to  consume  the  air  and  water 
upon  the  premises.  What  difference,  then,  is  there  between 
these  cases  and  the  well  in  question,  which  was  opened  in  ex- 
press conformity  with  the  written  terms  of  the  lease?  It  is 
the  same  as  if  the  well  had  been  there  before  the  lease  was 
made."  -'^ 

Where  a  lease  provided  that  the  lessor  should  receive  a  cer- 
tain portion  of  the  oil  produced ;  and  also  provided  that  "  should 
any  well  produce  gas  in  sufficient  quantities  to  justify  market- 
ing, the  lessor  shall  be  paid  at  the  rate  of  one  hundred  dollars 
per  year  for  such  well  so  long  as  gas  therefrom  is  sold  " ;  and 
the  lessor  brought  suit  to  recover  the  gas  rental,  alleging  that 
the  lessee  had  marketed  and  sold  gas  from  a  well,  it  was  held 
that  an  expert  might  testify  to  the  necessity  of  removing  the 
gas  in  order  to  successfully  operate  the  well  for  the  production 
of  oil,  as  showing  that  the  removal  of  the  gas  was  consistent 
with  the  denial  of  the  lessor's  right  to  collect  a  rental  there- 
for.^^^' 

2S2  Wood  County,  etc.,  Co.  v.  West  283  Shewalter  v.  Hamilton  Oil  Co., 

Virginia,  etc.,  Co.,  28  W.  Va.  210;        28  Ind.  App.  312;  62  N.  E.  Rep.  708. 
.57  Am.  Rep.  659.     Contra,  Kitchen 
V.  Snith.  101  Pa.  St.  452. 


LEASES.  ^^^ 


.R119.     Oil  lease  gives  no  right  to  gas  if  oil  be  not  found. 

If  a  lease  be  executed  for  the  purpose  alone  of  drilling  for 
oil,  and  oil  be  not  found,  though  gas  be  found,  the  lessee  cannot 
insist  tliat  the  lease  has  not  terminated,  on  the  ground  that  he 
had  succeeded  in  developing  a  paying  gas  well  or  wells;  and 
the  lessee  is  not  even  entitled  in  equity  to  reimbursement,  lor 
the  expense  of  his  operations,  out  of  tlie  proceeds  of  the  gas  ob- 
tained.    In  passing  on  this  question  the  court  said :     The  lease 
"  expressly  declares  the  property  shall  be  occupied  and  worked 
for  petroleum,  rock  or  carbon  oil,  and  shall  not  be  occupied  or 
used  for  any  purpose  whatever;  and  if  no  oil  is  found  in  pay- 
ing quantities  within  four  years  from  this  date  ^-  the  lease 
shall  be  null  and  void.     Oil  was  not  found.     It  would  be  a 
.clear  perversion  of  language  to  hold  that  oil  and  gas  are  syn- 
onymous terms.     The  evidence  is  insufficient  to  prove  that  the 
word  gas  was  omitted  from  the  lease  through  fraud,  accident 
or  mistake.     The  doctrine  of  equitable  estoppel  is  not  applica- 
ble to  the  facts."  '''     On  the  second  branch  of  the  proposition 
above  stated,  this  same  court  used  the  following  language : 

"  The  rio-hts  of  the  parties  are  determined  by  their  contract, 
which  is  a^'law  of  their  ow  making.     It  is  a  si^eculative  con- 
tract, whollv  at  the  risk  of  the  lessees.     If  they  obtain  oil  they 
make  a  profit,  in  some  instances  a  very  large  one;  while  if  they 
fail    the  loss  is  wholly  their  own.     They  have  no  right  to  be 
reimbursed  bv  the  lessor,  or  out  of  their  proi^erty,  under  any 
circumstances  whatever.     As  before  observed,  it  was  a  specula- 
tion pure  and  simple,  in  which  the  lessees  assumed  all  Hie  risk. 
They  did  so  for  the  chance  of  getting  seven-eighths  of  the  oil. 
Upon  what  principle  of  equity  can  this  risk  be  shifted  upon  the 
lessors   and  thev  be  required  to  pay  for  the  expenditures  which 
the  lessees  agreed  to  make  at  their  o^vn  risk  ?     It  will  be  seen 
at  a  glance  that  there  is  no  analogy  between  such  case  and  that 
of  a  person  who  is  in  iiossession  of  land,  under  color  of  title,  and 
innocently  builds  a  house  or  bam,  or  makes  other  valuable  and 

.34  The  date  of  the  lease.  -^  Truby  v.  Palmer,  4  Cent.  Rep. 

(Pa.)   925;  6  Atl.  Rep.   74. 


140  OIL     AND    GAS. 

permanent  improvements  upon  it.  In  sucli  case,  in  an  action 
for  tlie  mesne  profits,  he  may  justly  be  allowed  for  the  value  of 
such  improvements  to  the  extent  they  have  increased  the  value  of 
the  property.  But  here,  the  lessees  did  nothing  but  what  they 
agreed  to  do  at  their  own  risk."  ^^^ 

§120.     Eviction. —  Ejectment. 

If  the  lessor  convey  the  leased  premises  to  a  third  person,  and 
the  deed  of  conveyance  is  not  made  subject  to  the  lease,  there 
is  a  technical  eviction  of  the  lessee ;  "^^  but  if  the  grantee  had 
knowledge  of  the  lease,  the  lessee's  rights  are  not  lost,  and  there 
is  no  breach  of  a  covenant  of  warranty. '^^  The  erection  by  the 
lessor  of  a  building  on  the  part  of  the  land  to  b©  occupied  by  the 
lessee,  but  which  does  not  interfere  with  his  operations,  is  not 
an  eviction.^^''  If  the  lease  be  made  of  a,  large  tract,  but  tlie 
lessee  is  to  occupy  only  a  certain  portion  of  it  for  his  operations, 
he  cannot  maintain  ejectment  for  such  portions  as  he  does  not 
occupy.^^"  Ejectment,  however,  lies  in  favor  of  a  lessee  to  re- 
cover possession  from  which  he  has  been  nnlawfnlly  deprived  of 
the  possession."'*^  If  a  lessee  goes  into  possession  of  premises 
already  leased  for  tlie  same  purpose  but  accepts  from  the  first 
lessee  a  sum  of  money  on  account  of  damages,  and  contracts  with 

28t5  Palmer  v.  Truby,   136  Pa.   St.  W.  Rep.  1083;  20  Ky.  L.  Rep.  1082; 

556;   20  All.  Rep.  516.  Ream  v.  Goslee,  21   Incl.  App.   241; 

A  lease  gave  the  right  to  drill  for  52    N.   E.    Rep.    93 ;    Lake   v.   Dean, 

oil    and   gas,   and   contained   a   pro-  28   Beav.   607 ;    Demars   v.   Koehler, 

vision    for   a    certain   rental    if   gas  60  N.  J.  L.  314;  38  Atl.  Rep.  808. 

was   obtained,   witliout  any  distinc-  28o  Matthews  v.   People's   Natural 

tion  as  to  whether  the  gas  was  de-  Gas   Co.,   170   Pa.   St.    105;    36   Atl. 

rived  from  gas  or  oil  wells.     It  was  Rep.  216. 

held  that  evidence  was  not  admis-  sgoDuflicld  v.  Hue,  129  Pa.  St. 
sible  to  show  that  the  word  ''gas,"  94;  18  Atl.  Rep.  566. 
as  used  in  the  lease,  in  trade  meant  Solid  mineral  under  the  soil  may 
gas  derived  from  a  gas  well,  and  be  the  subject  of  an  action  of  eject- 
not  gas  derived  from  an  oil  well.  ment.  Kirck  v.  Mattier,  140  Mo. 
Burton  v.  Forest  Oil  Co.  (Pa.),  54  23;  41  S.  W.  Rep.  252. 
Atl.  Rep.  266.  291  Erskine  v.   Forest  Oil  Co.,   SO 

2S7  Mathews    v.    People's    Natural  Fed.   Rep.   583;    California  Oil   Gas 

Gas   Co.,    179   Pa.   St.    165;    36   Atl.  Co.  v.  Miller,  96  Fed.  Rep.  12;  Mes- 

Rep.  216.  simer's    Appeal,    92    Pa.     St.     168; 

288  Sanders  v.  Rowe   (Ky.),  48  S.  Long's  Appeal,  92  Pa.  St.  171. 


LEASES.  l4l 

him  as  to  damages  in  the  future,  he  cannot  defend  against  the 
payment  of  rent  on  the  ground  that  he  has  been  evicted  by  his 
landlord. -°- 

§121.     Failure  of  title,  reimbursement  of  operator. 

If  a  person  in  ]X)ssession  of  oil  land,  in  good  faith  believe  he 
has  good  title  thereto,  either  by  way  of  ownership  or  as  lessee, 
and  under  that  belief  drill  a  well  or  wells ;  and  afterwards  he 
lose  possession,  in  an  action  of  ejectment;  he  may  retain  out 
of  the  proceeds  of  the  oil  or  gas  produced  during  his  occupancy 
a  sufficient  amount  to  reimburse  himself  for  the  cost  of  drilling 
the  well.  In  discussing  this  case,  the  Supreme  Court  of  Penn- 
sylvania said : 

"  If  this  is  a  kind  of  improvement  of  an  unusual  character 
and  one  which  particularly  commended  'itself  to  the  favorable 
opinion  of  the  courts.  It  was  an  oil  well  with  all  the  machinery 
and  appliances  necessary  to  its  operation.  Xow,  without  this 
well  and  machinery,  the  oil  could  not  possibly  be  obtained. 
After  it  was  completed  its  operations  were  all  for  the  benefit  of 
the  plaintiffs.  The}'  have  actually  received  the  entire  advan- 
tage of  its  structure  and  maintenance  without  a  penny  cost  to 
themselves  and  without  any  risk.  All  the  cost  and  all  the  risk 
were  borne  by  the  defendants.  .  .  .  Obtaining  oil  from 
the  bowels  of  the  earth  is  a  very  different  thing  from  obtaining 
crops  from  the  surface  of  the  ground.  The  oil  exists  only  at  a 
distance  of  hundreds  of  feet  below  the  surface.  If  it  is  not 
developed  by  means  of  wells  it  is  the  same  as  if  it  had  no  exist- 
ence at  all.  It  is  in  a  state  of  nature,  of  no  use  or  value  to  the 
o^\^^er  of  the  land.  .  .  .  Therefore,  it  is  no  hardship  to 
them  to  repay  to  the  defendants  the  bare  cost  of  the  well  and 
appliances  which  belong  to  the  plaintiffs  now,  and  the  whole 
benefits  of  which  accrue  to  them  alone.  ...  It  has  cost 
the  plaintiffs  nothing,  and  we  know  of  no  good  reason,  in  law  or 
morals,  why  the  reasonable  claim  of  the  defendants  should  not 
be  allowed.     .     .     .     It  is  not  a  question  of  staying  waste,  but 

292Horberg  v.   May,    153   Pa.   St.  216;  25  All.  Rep.  750. 


142  OIL    AND    GAS. 

of  allowance  for  the  cost  of  valuable  improvements  actually 
necessary  and  made  in  good  faith.  For  sudi  improvements 
compensation  is  allowed,  whether  that  which  is  taken  be  min- 
eral, oil  or  other  siibstauces  of  the  land  or  not."  ^^^ 

§122.     Lessee  denying  tenancy. 

The  rule  that  a  tenant  cannot  deny  his  landlord's  title  does 
not  embrace  an  oil  or  gas  lease  which  the  lessor  had  no  right  to 
give,  if  neither  the  lessee  nor  his  assignee  ever  took  possession 
or  executed  any  powers  or  rights  under  it."^*  Where  a  son 
joined  in  a  lease  witli  his  father  of  the  latter's  farm,  he  being 
of  full  age  and  living  on  the  farm  with  his  father,  and  the 
royalty  reserved  to  both  of  tliem  was  delivered  to  the  father 
and  his  vendee,  it  was  held,  in  an  action  brought  by  the  son 
against  tlie  lessee  to  recover  one-half  of  the  royalty,  that  the 
lessee  could  show  the  circumstances  under  which  the  son  signed 
the  lease,  not  to  deny  the  landlord's  title,  but  to  deny,  as  to  the 
son,  that  the  lease  created  the  relation  of  landlord  and  tenant."^^ 
If  a  lessee  take  a  second  lease  of  the  premises  from  a  person 
claiming  adversely  to  the  first  lessor,  he  caiuiot  refuse  to  pay 
rent  under  the  second  lease  on  the  ground  that  the  first  lessor 
liad  the  better  title. '^'^ 

§123.     Uncertainty  on  lease. —  Unconscionable. 

If  a  lease  be  uncertain  in  its  terms,  and  tliose  parts  in  which 
it  is  not  uncertain  is  unconscionable  towards  the  party  seeking 
to  escape  from  its  obligations,  the  court  will  seize  upon  sudi 
iincertainty  in  order  to  declare  it  void.'^" 

"293  Phillips  V.  Coast,   130  Pa.  St.  use  that  as  a  defense  to  an  action 

S72;   18  Atl.  Rep.  998.  to     recover     royalty.     Chambers    v. 

294  Marshall  v.  Mellon,  26  Pittsb.  Smith,  183  Pa.  St.  122;  38  Atl.  Rep. 
X.  J.    (N.   S.)    290;    17   Pa.  Co.  Ct.  522. 

Hep.  366;  affirmed  179  Pa.  St.  371;  290  Hamilton   v.   Pittock,   158   Pa. 

^6    Atl.    Rep.    201.     See    Mays    v.  St.  457;   27  Atl.  Rep.   1079. 

"Dwight,  82  Pa.  St.  462.  297  Eaton  v.  Wilcox,  42  Hun  61; 

295  Swint  V.  McCalmont  Oil  Co..  Stahl  v.  Van  Vleck.  53  Ohio  St.  136; 
184  Pa.  St.  202;  38  Atl.  Rep.  1020.  41    N.    E.    Rep.    35;    33    Wkly.    L. 

A  lessee  cannot  compromise  with       Bull.   335. 
an  assailant  of  the  lessor's  title,  and 


LEASES.  143 

§124.     Diameter  of  wells. 

A  contract  by  a  well  driller  to  drill  a  well  of  a  certain  diame- 
ter is  not  substantially  performed  by  boring  one  of  less  diame- 
ter, without*  any  other  excuse  except  to  save  time  and  expense, 
although  for  the  purpose  of  testing  the  territory,  a  smaller  well 
may  be  as  eifectual  as  a  larger  one  would  be."^^  Unless  the  lease 
require  the  lessee  to  drill  a  well  of  a  specified  diameter,  he  has 
the  right  to  determine  tlie  diameter  of  the  well,  limited,  how- 
ever, by  the  general  rule  that  the  diameter*  must  be  one  that  is 
great  enough  to  furnish  oil  or  gas  in  payiiig  quantities',  if  that 
amount  should  be  discovered.  Or  in  other  words,  the  diameter 
must  be  such  as  is  in  common  use  in  oil  or  gas  regions,  and 
which  common  experience  has  shown  to  be  necessary  to  produce 
good  results. 

§125.     Contract  to  drill  wells  "in  the  vicinity." 

A  well  driller  offered  tO'  drill  an  oil  w^ell  upon  any  one  of  the 
lessee's  several  leases  that  it  should  select.  He  also  proposed, 
"  If  you  decide  to  drill  any  more  wells  upon  said  leases  or  in 
the  vicinity,  ...  I  am  to  have  the  contract."  At  the  end 
of  this  written  offer  was  written,  "  Accepted,  contract  to  Im' 
drawTi  in  accordance  with  the  above  proposition  or  bid,"  and 
after  these  words  were  written,  ''  This  is  about  right,  and  ^vill 
be  sati&factors'  to  the  Pittsburgh  Company."  A  well  was  dug 
by  the  driller,  without  any  contract  being  executed  which  proved 
to  be  a  dry  one.  The  lessee  then  abandoned  the  enterprise  of 
sinking  wells  on  about  one  thousand  acres  of  contiguous  lands 
held  by  it  by  lease,  and  on  which  the  dry  well  had  been  sunk,  but 
began  sinking  wells  two  miles  away  from  tlie  territory  aban- 
doned. It  was  held  that  the  contract  to  drill  wells  did  n<it 
cover  the  territory  two  miles  away,  for  it  applied  only  to  lands 
''  in  the  vicinity,"  and  the  lands  two  miles  away  was  not  "  in 
the  vicinitv."  ''^ 


238  Gillispie   Tool    Co.    v.    Wilson,  299  Sparks  v.  Pittsburgh  Co.,  1.59 

123  Pa.  St.  19;  16  Atl.  Rep.  36.  Pa.  St.  295;  28  Atl.  Ren.  152. 


CHAPTER  IV. 


DURATION    OF    LEASE. 

§126.  Ordinary  leases. 

§127.  Diligent  search. —  Implied  covenant. 

§128.  Holding  for  speculation  purposes. 

§129.  Non-develoijment   of   leased   premises   where   no   limit   fixed. —  For- 
feiture. 

§130.  Greater  diligence  required  in  developing  oil  than  coal  lands. 

§131.  Acquiescence  in  delay. —  Unavoidable  accident. 

§132.  Acquiescence   in   abandonment. —  Damages. 

§133.  Actual  mining  operations  must  be  commenced. 

§134.  In  paying  quantities. 

§135.  Paying  quantities,  continued. 

§136.  C4as  in  paying  quantities. 

§137.  Abandonment. 

§138.  Lessee  may  abandon  non-productive  premises. 

§139.  Completion   of  non-productive  well. — Title. 

§140.  Instances  of  abandonment. 

§141.  Cessure   of  work  after  operations  begim. 

§142.  Surrender. 

§143.  Surrender  by  substitution  of  tenants  or  assignment  of  lease. 

§144.  Parol  surrender. 

§145.  Payment  of  rental   instead  of  developing  premises. 

§146.  Rccision  for  fraud. 

§126.     Ordinary  leases. 

In  an  ordinary  lease  the  time  of  its  duration  is  usually  speci- 
fied, so  that  no  trouble  arises  over  the  length  of  time  it  is  to 
run ;  but  even  it  may  contain  so  many  conditions,  "  ifs  and 
ands,"  that  it  is  difficult  to  determine  its  life.  But  in  the  case 
of  gas  and  oil  leases,  there  is  scarcely  a  lease  in  existence  that 
does  not  contain  conditional  clauses  which  are  determinative  cf 
its  duration.  Oil  and  gas  leases  are  almost  universally  granted 
upon  the  condition  that  they  are  to  terminate  v^^hen  all  the  oil  or 
gas  has  been  taken   out  of  the  leased   premises.      And   almost 

144 


DUKATION    OF    LEASE.  145 

every  oil  or  gas  lease  contains  a  clause  requiring  the  premises 
leased  to  be  developed,  or  partially  developed,  within  a  specified 
time,  or  the  demise  to  terminate ;  and  whether  such  a  clause  is 
inserted  or  not,  the  courts  hold  that  the  lease  is  granted  upon 
an  implied  condition  that  the  premises  shall  be  speedily  devel- 
oped, and  will  seek  an  opportunity  to  hold  that  they  have  been 
abandoned  (though  usually  not  forfeited),  if  not  developed 
with  reasonable  celerity/ 

§127.     Diligent  search. —  Implied  covenant. 

It  is  the  duty  of  the  lessee  to  make  diligent  search  and  opera- 
tion of  the  leased  premises;  and  it  is  not  necessary  that  a  provi- 
sion for  such  search  or  operation  be  inserted  in  the  lease ;  for  it 
is  an  implied  covenant  in  every  oil  and  gas  lease  that  a  diligent 
search  and  operation  will  be  prosecuted.'  And  where  the  only 
consideration  was  the  royalty,  a  failure  on  the  part  of  the  lessee 
to  commence  operations  for  eight  months  was  held  to  be  an  aban- 
donment.^ 

§128.     Holding  for  speculative  purposes. 

An  oil  or  gas  lease  cannot  be  held  for  merely  speculative  pur- 
poses.*    "  Xo  lease  of  land  for  a  rent  for  a  return  to  the  land- 

1  Parish  Fork  Oil  Co.   v.   Bridge-  closing  it,  was  held  prima  facie  to 

water  Gas  Co.,  51  W.  Va.  583 ;  42  !S.  authorize   the  grantor,   who   was  to 

E.  Rep.  G55 ;  Gadbury  v.  Ohio,  etc.,  be   paid   .$100   per   annum    for   each 

Gas  Co.    (Ind.),  67  N.  E.  Rep.  259;  well  while  gas  was  being  used  off  the 

McKnight  v.   Natural  Gas  Co.,   146  premises,  without  demand,  to  treat 

Pa.   St.    185;   23  Atl.  Rep.   164;   28  the  grant   as   abandoned.     Gadbury 

Am.   St.   Rep.   790.  v.  Ohio,  etc.,  Gas  Co.    (Ind.),  67  N. 

2Huggins  V.  Daley,  99  Fed.  Rep.  E.   Rep.   259. 
606;   40  C.   C.  A.   12;   48  L.   R.  A.  4  Huggins  v.  Daley,  99  Fed.  Rep. 

320;    Allegheny   Oil    Co.   v.    Snyder,  606;    40   C.   C.   A.    12;   48  L.   R.   A. 

106  Fed.  Rep.  764;  45  C.  C.  A.  604;  320;  Twin-Lick  Oil  Co.  v.  Marbury. 

Hewitt  Iron   Mining  Co.   v.  Dessau  91  U.  S.  587;   Guffey  v.  Hukill,  34 

Co.,    129  Mich.  — ;    89  N.   W.   Rep.  W.  Va.  49;   11  S.  E.  Rep.  754;  8  L. 

365.  R.   A.    759;    Steelsmith   v.    Gartlan, 

3  Federal   Oil  Co.  v.   Western  Oil  45  W.  Va.  27;   29   S.  E.  Rep.  978; 

Co.,  112  Fed.  Rep.  373.  44  L.  R.  A.  107;  American  Window 

Failure  of  the  lessee  for  two  years  Glass  Co.  v.  Williams    (Ind.  App. ), 

to  develop  the  premises,  after  drill-  66  N.  E.  Rep.  912. 
ing    a    well,    finding   gas,    and    then 


146  OIL    AND    GAS. 

lord  out  of  the  land  which  passes  can  be  constrned  to  he  intended 
to  enable  the  tenant  merely  to  hold  the  lease  for  purposes  of 
speculation,  without  doing  and  performing  therewith  what  the 
lease  contemplated.  Such  a  construction  would,  indeed,  make 
all  such  contracts  a  snare  for  the  entrapment  and  injury  of  the 
unwary  landlord.  A  man  buying  and  paying  for  land  may  do 
with  it  as  he  likes  —  work  it  or  let  it  lie  idle.  But  a  tenant  to 
whom  land  ])asses  for  a  specified  purpose  has  no  such  discretion  ; 
he  must  perform  what  he  stipuhited  to  do."  ^ 
§129.  Non-development  of  leased  premises  where  no  limit  fixed. — 
Forfeiture. 

In  many  early  oil  or  gas  leases  no  time  was  fixed  when  the 
premises  should  be  developed.  It  was  assumed  that  the  lessee 
had  interest  enough  in  the  lease  to  develop  the  premises.  It 
seldom,  occurred  to  a  land  owner  that  a  lessee  had  a  lease  on 
adjoining  premises  by  which  he  could  drain  the  oil  or  gas 
from  beneath  such  o^vuer's  premises ;  or  that  he  desired  to  keep 
the  premises  for  future  use.  Forfeiture  clauses  in  such  leases 
were  seldom  inserted  for  failure  to  develop  the  premises  leased. 
In  time  the  land  owner  realized  that  he  was  getting  no  benefit 
out  of  his  land  by  reason  of  the  oil  or  gas  that  he  believed  or 
even  was  morally  certain  was  lying  beneatli  its  surface,  and  he 
sought  a  way  to  avoid  the  lease.  Courts  found  it  essential  fry 
the  administration  of  justice  to  give  him  relief,  and  lent  their 
powerful  aid  to  him.*'  It  is  the  duty  of  the  lessee  to  develoj> 
the  premises ;  and  he  can  not  hold  the  land  for  speculative  pur- 
poses indefinitely,  or  even  for  a  stated  period,  for. a  nominal 
rent,  when  a  royalty  is  the  chief  object  for  the  execution  of  the 
lease."     ''  The  fluctuating  character  and  value  of  tliis  class  of 

RRorer  Iron  Co.  v.  Trout,  83  Va.  hevry  v.   Sun  Oil  Co.    (Ohio)    07  N. 

397;    2   S.   E.   Rep.   713;    Munroe  v.  E.   Ri'p.    100!). 

Armstrong,   !)G  Pa.   St.   307.  ^  Twinlick    Oil    Co.    v.    Marbury. 

«  Brown    v.    Vandergrift.    80    Pa.  ni  U.  S.  587;  Huggins  v.  Daley,  !)!) 

St.   142;   Island  Coal  Co.  v.  Comb.s,  Fed.  Rep.  G06 ;   40  C.  C.  A.   12;   48 

152    Ind.   379;    53   N.   E.    Rep.   452;  L.    R.    A.    320;    Rorer    Iron    Co.    v. 

Maxwell  v.  Todd    (N.  C),  10  S.  E.  Trout,  83  Va.  397;  2  S.  E.  Rep.  713; 

Rep.  926;  Ohio  Oil  Co.  v.  Hurlburt,  Allegheny    Oil    Co.    v.    Snyder,    100 

14  Ohio  C.  C.  144;  7  Ohio  Dec.  321,  Fed.  Rep.  764;  45  C.  C.  A.  004. 
reversing  0   Ohio   Dec.    305;    Coflin- 


DURATION    OF    LEASE.  147 

property,"  said  the  Supreme  Court  of  the  United  States,  "  is 
remarkably  illustrated  in  the  history  of  the  production  of  min- 
eral oil  from  wells.  Property  worth  thousands  today  is  worth 
nothing  tomorrow ;  and  that  which  we  today  sell  for  a  thousand 
dollars  as  its  fair  value,  may  by  the  natural  changes  of  a  week, 
or  the  energy  or  courage  of  desperate  enterprise,  in  the  same 
time,  be  made  to  yield  that  much  every  day.  The  injustice, 
therefore,  u  obvious  of  permitting  one  holding  the  right  to  as- 
sert an  ownership  in  such  property  to  voluntarily  await  the 
event,  and  then  decide,  when  the  danger  which  is  over  has  been 
at  the  risk  of  another,  to  come  in  and  share  the  profit.  While 
a  much  longer  time  might  be  allowed  to  assert,  this  right  in 
regard  to  real  estate  whose  value  is  fixed,  on  whicli  no  outlay 
is  made  for  improvement,  and  but  little  change  in  value,  the 
class  of  property  here  considered,  subject  to  the  most  rapid,  fre- 
quent and  violent  fluctuations  in  value  of  anything  known  as 
property,  requires  prompt  action  in  all  who  hold  an  option, 
whether  they  will  share  its  risks  or  stand  clear  of  them."  * 
Where  a  gas  or  oil  lease  was  given  for  ten  years,  a  certain  por- 
tion of  the  oil  obtained  to  be  given  as  royalty,  a  fixed  sum  paid 
annually,  and  a  test  well  to  be  completed  within  one  year  from 
the  date  of  the  lease,  it  was  held  that  the  lessee  could  not  dig  a 
test  well  within  the  year,  and  thus  vest  in  himself  the  privilege 
to  take  out  oil  and  gas  for  ten  years  in  the  whole  territory ;  but 
he  was  bound,  within  a  reasonable  time  thereafter,  to  sink  other 
wells  so  as  to  develop  the  whole  territory ;  and  if  he  did  not, 
he  had  abandoned  or  forfeited  his  right  to  the  whole  territory 
premises.  The  premises  were  covered  by  several  separate 
leases  on  its  several  parts,  and,  of  course,  the  test  well  was 
drilled  under  only  one  lease.  The  court  held  that  the  other 
leases  were  abandoned.^  A  failure  for  seven  years  to  put  down 
a  test  well  was  considered  such  laches  as  to  show  an  abandon- 

sTwinlick    Oil    Co.    v.    Marbuiy.  Oil  Co.  v.  Harris,  1  Ohio  N.  P.  132: 

supra.      See  Coffinberry   v.   Sun   Oil  1  Ohio  Dee.  157;  Foster  v.  Elk  Fork 

•Co.   (Ohio)   67  N.  E.  Rep.  1069.  Oil  and  Gas  Co.,  90  Fed.  Rep.  178; 

9  Elk   Fork    Oil    and    Gas    Co.    v.  32   C.  C.  A.   560. 
.Jennings,    84    Fed.    Rep.   839;    Ohio 


148  oil.    AND    GAS. 

ment,  and  the  lease  was  cancelled. ^^  A  lessor  will  not  be  per- 
mitted to  retain  possession  of  tlie  leased  premises  for  the  pur- 
poses of  exhausting  tlie  oil  or  gas  under  the  surface  tliereof  by 
means  of  wells  on  adjoining  land  controlled  by  him,  which 
would  drain  the  oil  from  the  leased  premises."  An  o^vner  of 
land  leased  his  premises  to  a  gas  company  for  ten  years,  and  as 
much  longer  as  gas  was  found  in  paying  quantities,  or  the 
"  rental  "  was  paid  as  provided.  If  gas  was  found  in  quanti- 
ties sufficient  for  manufacturing  purposes,  the  gas  company  was 
to  pay  one  hundred  dollars  per  annum  for  each  well  from  the 
time  gas  was  used  therefrom  for  such  purposes.  Until  a  well 
was  drilled  and  gas  used  therefrom  by  the  gas  company,  it  was 
to  pay  fifty  dollars  a  year  "  rent."  It  was  held  tliat  the  lease 
did  not  continue  in  force  beyond  the  ten  years,  by  reason  of  the 
fact  that  the  lessee  completed  a  paying  well,  which  he  closed  and 
anchored,  and  yet  continued  to  pay  tlie  rent.^^ 

§130.     Greater   diligence   required  in  developing   oil   than   coal 
lands. 

In  the  development  of  oil  lands  greater  diligence  is  required 
than  in  the  development  of  coal  lands,  to  prevent  a  forfeiture 
or  raise  a  presumption  of  abandonment.  The  Supreme  Court 
of  Pennsylvania  thus  speaks  of  the  difference:  "The  appel- 
lant cites  Venture  Oil  Co.  v.  Fretts,^^  and  McXish  v.  Stone,^* 
and  other  cases  in  which  oil  leases  were  considered  and  the  rights 
of  the  lessors  and  lessees  defined.  A  lease  granting  to  the  lessee 
the  right  to  explore  for  oil  and,  in  case  oil  is  found  in  paying 
quantities  on  the  leased  premises,  to  drill  wells  and  raise  the 

10  Crawford  v.  Ritchey,  43  W.  Va.  502;  27  Pittsb.  L.  J.   (N.  S.)   21;  38 

252;    27   S.   E.   Rep.   220;    Barnliart  W.  N.  C.  388;  35  Atl.  Rep.  109. 

V.    Lockwood,    152    Pa.    St.    82;    25  12  American  Window  Glass  Co.  v. 

Atl.  Rep.  237;  Ohio  Oil  Co.  v.  Hurl-  Williams  (Ind.  App.),  66  N.  E.  Rep. 

linrt.   14   Ohio  Cir.  Ct.  Rep.   144;    7  912.     See  also  Gadbury  v.  Ohio,  etc., 

Ohio  Dee.  321,  reversinjr  6  Ohio  Dec.  Gas  Co.   (Ind.).  67  N.  E.  Rep.  259. 

305;   Hawkins  v.  Pepper.  117  ^.  C.  is  152   Pa.   St.  451;    25  Atl.   Rep. 

407;   23   S.   E.   Rep.   434;    Welty  v.  732;   31  W.  N.  C  432. 

Wise,   5   Ohio  N.   P.   50.  i4  152  Pa.  St.  457,  note. 
11  Kleppner  v.  Lemon,  176  Pa.  St 


DUKATIOX    OF    I.EASE.  149 

oil,  paying  an  agi"eecl  royalty  therefor,  has  been  held  to  convey 
no  interest  in  the  land  beyond  the  right  to  enter  and  explore, 
unless  the  search  for  oil  proves  snccessful.  If  it  proves  unsuc- 
cessful and  the  lessee  abandons  its  future  prosecution,  his  rights 
under  the  lease  are  gone.  So  it  might  be  with  a  similar  lease 
of  lands  supposed  tO'  contain  coal.  If  the  lessee  entered,  ex- 
plored the  leased  premises,  and  finding  nothing  gave  up  the 
search,  he  would  no  doubt  be  held  to  tlie  same  i-ules,  upon  the 
same  provisions  in  the  lease,  as  were  applied  in  the  cases  cited. 
The  difference  in  the  nature  of  the  two  minerals,  and  the  man- 
ner of  their  production,  has,  however,  resulted  in  considerable 
differences  in  the  forms  of  tJie  contracts  or  leases  made  use  of. 
When  oil  is  discovered  in  any  given  region,  the  development  of 
the  region  becomes  immediately  necessary.  The  fugitive  char- 
acter of  oil  and  gas,  and  the  fact  that  a  single  well  may  drain 
a  considerable  territory  and  bring  to  tlie  surface  oil  that,  when  in 
place  in  the  sand-rock,  was  under  the  lands  of  adjoining  o-wn- 
ers,  makes  it  important  for  e^ch  land  owner  to  test  his  o^\^l  land 
as  speedily  as  possible.  Such  leases  generally  require,  for  this 
reason,  that  operations  should  begin  within  a  fixed  number  of 
days  or  months,  and  be  prosecuted  to  a  successful  end  or  to  aban- 
donment. Coal,  on  the  other  hand,  is  fixed  in  location.  The 
owner  may  mine  when  he  pleases  regardless  of  operations, 
around  him.  Its  amount  and  probable  value  can  be  calculated 
with  a  fair  degree  of  business  certainty.  There  is  no  necessity 
for  haste,  nor  moving  pari  passu  with  adjoining  owners.  The 
consequence  is  that  coal  leases  are  for  a  certain  fixed  term,  or 
for  all  the  coal  upon  the  land  leased,  as  the  case  may  be.  The 
rule  of  Venture  Oil  Co.  v.  Fretts,  supra,  is  not  capable  of  ap- 
plication to  the  lease  made  by  Callender  to  Meredith  in  1828, 
for  several  reasons:  (1)  The  Callender  lease  is  in  effect  a 
sale  of  all  the  coal  in  the  leased  premises,  and  consequently  a 
severance  of  the  surface  therefrom.  (2)  It  is  for  one  hundred 
years.  All  idea  of  haste  in  development  or  operating  is  ex- 
cluded by  the  terms  of  the  instrument,  and  the  time  for  com- 
mencing the  work  of  mining  is  left  to  the  discretion  of  the  les- 
see.     (3)    The  consideration  of  the  grant  was  not  the  develop- 


150  OIL    AND    GAS. 

ment  of  tiie  mineral  value  of  the  land,  but  the  price  fixed  by 
the  agreement  and  actually  paid  to  the  lessor  in  money."  ^^ 

§131.     Acquiescence  in  delay. —  "Unavoidable  accident. 

The  time  of  the  lease,  at  least  for  development  of  the  prem- 
ises, may  be  prolonged  by  the  acquiescence  of  the  lessor  in  the 
delay.  And  where  the  lease  provided  that  -d  test  well  should  be 
completed  by  a  given  time,  "  unavoidable  accident "  excepted, 
it  was  held  that  a  recognition  by  the  lessors  of  tlie  unavoidable 
character  of  certain  accidents  delaying  operations,  coupled  with 
acquiescence  in  such  delay,  was  a  waiver  of  the  right  to  enforce 
the  forfeiture  clause  of  the  lease.^*'  Acquiescence,  however, 
with  regard  to  the  time  within  which  a  well  is  to  be  begun,  is 
not  a  waiver  of  the  time,  Avitliin  which  it  is  to  be  furnished.^' 
An  agreement  that  the  lessee  should  have  further  time  within 
which  to  complete  the  development  of  the  premises,  even  if 
made  after  the  lease  has  expired,  is  binding  on  the  lessor.^* 

§132.     Acquiescence  in  abandonment. —  Damages. 

If  a  lessor  acquiesce  in  tlie  action  of  the  lessee  in  abandoning 
the  leased  premises,  he  will  thereby  terminate  his  lease  and 
waive  his  right  to  damages  accruing  after  the  time  of  the  aban- 
donment. Especially  is  this  true  if  the  aicquiescence  is  evi- 
denced by  tlie  lessor  taking  possession  and  leasing  the  premises 
to  third  parties,  even  if  the  second  lease  is  for  another  mining 
purpose.^'' 

§133.     Actual  mining  operations  must  be  commenced. 

A  lease  requiring  the  work  of  development  to  be  commenced 
Within  a  certain  time,  by  drilling  wells,  requires  actual  drilling 

15  Plummer  v.  Hillside,  etc.,  Co.,  As  to  endorsement  on  lease  for  an 
160  Pa.  St.  483;  28  Atl.  Rep.  853.  extension   of  an  Ohio  lease  and   its 

16  Elk   Fork   Oil    and   Gas   Co.   v.  recording,    see    Northwestern    Ohio. 
Jennings,    84    Fed.    Rep.    839.     See  etc.,  Co.  v.   Browning.   15  Ohio  Cir. 
Duffield  V.  Michaels.   102  Fed.  Rep.  Ct.  Rep.  84;  8  Ohio  C.  D.  188. 
820;  42  C.  C.  A.  640.  is  Riddle   v.   Mellon,    147    Pa.   St. 

iTCleminger    v.    Baden    Gas    Co..       30;  23  Atl.  Rep.  241. 
150  Pa.  St.  16;  33  W.  N.  C.  480;  28  lo.May  v.  Hazlewood  Oil  Co..  152 

Atl.  Rep.  293.  Pa.  St.  518;  25  Atl.  Rep.  564. 


151 

DURATION    OF    LEASE. 

operations  to  be  commenced  within  tlie  time  specified;  and  tlie 
„L  erection  of  drilling  apparatus  will  not  be  a  compliance 
witli  its  terms." 

8134.     In  paying  quantities. 

.\  verv  common  expression  in  oil  and  gas  leases  is  that  they 
ar^  to  c;„tinue  so  long  as  oil  or  gas  is  or  can  be  P™<1"<=«<1  'n 
"  paying  quantities."     This  is  a  clause  for  the  benefit  of  the 
lesTi-  L  it  is  obvious  that  a  prudent  man  would  not  want  to 
pTr^nt  for  premises  after  they  had  ceased  to  be  producttve; 
Z  would  he'carc  to  operate  them,  on  even  a  royalty,  .v^.ere 
the  operating  expenses  were  more   than    the   income.     Occa- 
Inalh    he  ^hrarmight  I.  of  value  to  the  lessor    for  should 
the  le^ee  ocLpy  considerable  surface  of  the  ground  leased, 
,„ight  be  of  more  value  to  him  for  other  purposes  than  to  h.^ve 
it  continued  for  oil  or  gas  puriK>ses.     If  a  lease  is  conditioned 
that  it  is  to  continue  ••  so  long  as  oil  is  produced  m  paying 
quantities,"  its  duration  depends  upon  the  intention  of  the  par^ 
ties,  as  asoeitained  from  the  circumstances  of  the  case"      11 
the  lease  is  for  a  sj^cified  i^riod,  as  for  "  three  years,    or  as 
,„uch  longer  thereafter  as  oil  or  gas  might  be  found  m  paymg 
quantities,"  then  it  extends  only  for  three  years,  unless  oil  oi 
gas  be  found  in  paying  quantities  before  the  expiration  ol  the 

..Island  coal  Co.  v.  Co,„b,.   152       sell,   1.  Oliio  Or.  Ct.  Rap.  mU   10 

I„a.  379;    53  N.    E.   Rep.   432.     In      O"- ^fj^f, 'J t,,  „„,  t„  develop 
thte  case  the  lease  was  of  eoal  l.,nds.  Neglect  to.  .^  ^^^^ 

,.ese,vi„g  a  royalty  on      ,e  ou.pu         Pjem.-     ^^_  .^^  ^^^,,^  ^^„, 

development  ot  tl.e  eoa,  .y  ope.n.  ^     ---'-  ^  -.  "'^ 

shafts   to   remove   .t.   and  by  open  .;„.„i„rton    v     Wood,    6    Ohio 

i„g  mines  so  as  to  enable    he  coal  -■  H«™g^-      ■                ^.^    ^<. 

to  be   mined  and  removed   to   m     -  <^%^          •^„,„.i,,    .- „eans 

ket.     It    was    held     that    this     re  *                ,L;{+^  tn  the  lessee "  even 

.--  aet.al  ^-^^^^^^^l  TZTP^^X^.^^  .- 

and  eqnipn.ent  of  shafts  and  nnnes      etc     Co^         ^       ■     ^     ^.^    ^,^^      ^  .^ 
hy  whk-h  coal  nn,ht  be  nnned  was       433      oitm      1        .  ^^ 

not  sufficient.     See  Duffield  V.  Rus-      Pa.  St.  243 ,  4o  . 


152  OIL    AND    GAS. 

period  named,  or,  in  the  illustration  given,  before  tlie  expira- 
tion of  the  three  years."'  The  use  of  the  word  "  and  "  for  "  or  " 
does  not  change  the  rule.''  The  interpretation  of"  this  clause 
has  not  by  any  .means  been  uniform.  Thus  in  Xew  York 
a  lease  for  a  terra  of  "  twelve  years  from  this  date,  or  so  long 
as  oil  is  found  in  paying  quantities,"  was  held  to  be  a  lease  for 
the  length  of  time  during  which  oil  is  found  in  paying  quan- 
tities, and  that  fixed  the  duration  of  the  temi."*  The  reason- 
able interpretation  of  such  a  clause  is  that  the  lessee  has  that 
period  of  time  fixed  in  the  lease  within  which  to  develop  the 
premises,  and  he  is  not  bound  to  proceed  to  develop  them  as  soon 
as  tiie  lease  is  granted,  especially  if  he  is  to  pay  a  fixed  rent  per 
acre  or  per  year  or  otherwise,  nor  mthin  what  might  be  termed  a 
reasonable  time,  so  that  he  develops  them  before  the  period  be  de- 
tennined.""  But  if  he  should  iwWy  develop  them  before  the 
end  of  the  fixed  period,  hoAvever  long  before,  and  clearly  demon- 
strated that  there  is  no  oil  or  gas  beneath  the  surface,  then  as 
soon  as  that  fact  is  ascertained  the  lease  is  at  an  end.  If  a 
lessor  has  given  a  long  period  of  time  within  which  to  develop 
the  leased  premises,  that  is  his  act  and  he  cannot  appeal  to  the 
courts  to  relieve  him  from  the  condition  in  which  his  own  error 
has  placed  him.  If  the  lease  be  for  a  certain  period  "  and  as 
long  thereafter  as  oil  is  found  in  paying  quantities,"  and  the 
lessee  fail  after  the  fixed  period  to  produce  oil  in  paying  quan- 
tities, the  tenancy  becomes  one  at  will,  not  from  year  to  year, 
and  may  be  ended  at  any  time  by  either  party;  and  if  oil,  after 
the  termination  of  the  lease,  be  found  in  paying  quantities,  the 
lessee  can  not  insist  that  his  lease  is  still  in  force,  nor  claim  anv 


2>(Shellar  v.  Shivers,   171   Pa.   St.  Cir.  Ct.   Rep.   78;    5  Ohio   Cir.  Dec. 

569;    33   All.   Rep.   95.  620. 

23  Nortliwesiern    Ohio,    etc.,    Gas  24  Eaton  v.  Allegany  Gas  Co..  122 

Co.   V.    City   of   Tiffin,   59    Ohio   St.  N.  Y.  416;   25  N.  E.   Rep.   981.   re- 

420;    54    N.    E.   Rep.   77;    Cassell  v.  versing  42  Hun  61.     See  Monfort  v. 

Crothers,   193   Pa.   St.  359;   44  Atl.  Lanyon    Zinc    Co.     (Kan.)     72    Pac. 

Kep.  446 ;  Brown  v.  Fowler,  65  Ohio  Rep.  784. 

St.  507;  63  N.  E.  Rep.  76;  Balfour  26  See  V.hur  v.  Northwestern,  etc.. 

V.   Russell.   167  Pa.  St.  287;   36  W.  Co..  12  Oliio  Cir.  Ct.  Rep.  78;  5  Ohio 

N.  C.  225;   31  Atl.  Rep.  570;    Blair  Cir.  Dee.  620. 
V.  Northwestern,  etc.,   Co.,   12   Ohio 


DURATION    OF    LEASE.  153 

part  of  the  oil."'  A  lease  for  two  years  "  and  as  much  longer 
as  oil  or  gas  would  be  found  in  paying  quantities,"  requiring 
the  lessee  to  commence  a  well  within  thirty  and  complete  it 
within  ninety  days,  and  if  no  well  was  completed  within  the 
latter  period,  requiring  the  lessee  to  pay  sixty  dollars  per  year, 
the  lessor  to  receive  a  certa-in  part  of  the  product  as  royalty, 
is  terminated  at  the  end  of  the  two  years,  if  oil  or  gas  be  not 
found  in  such  quantities,  and  its  life  cannot  be  prolonged  by  the 
payment  of  the  sixty  dollars  a  year  thereafter ;  for  the  life  of  the 
lease  beyond  the  two  years  is  dependent  on  the  fact  that  oil  or 
gas  be  found  in  paying  quantities.'^  If  the  lease  be  for  both  gas 
and  oil  purposes  and  gas  only  is  found  the  lessee  is  to  pay  a 
certain  annual  sum  for  each  well,  and  if  oil,  pay  a  royalty ;  the 
production  in  paying  quantities  of  either  gas  or  oil,  and  the 
payment  of  gas  rental,  or  the  delivery  of  the  oil  royalty  will 
prolong  the  lease  during  the  time  of  such  production."''  Where 
a  lease  required  the  lessee,  if  oil  be  found  in  paying  quantities, 
to  pay  the  lessor,  in  addition  to  land  money  six  hundred  dollars 
within  thirty  days,  the  court  considered  it  capable  of  enforce- 
ment. "  The  obvious  intention  was,"  said  the  court,  "  that  if, 
for  the  period  of  thirty  days  after  its  completion,  the  well  con- 
tinued to  produce  oil  in  such  quantities  as  to  make  it  profitable 
to  operate  it  during  that  jTcriod,  the  six  hundred  dollars  should 
be  demandable."  The  court  continued  its  observations  upon 
the  phrase  "  paying  quantities,"  by  saying:  "  There  is  a  great 
difference  between  a  paying  well,  i.  e.,  a  well  producing  oil  in 
paying  quantities,  and  one  that  pays  for  itself.  A  mine  for 
years  may  produce  ore  in  paying  quantities  and  be  very  profit- 
able during  that  time,  and  yet,  through  a  later  depreciation  in 
the  value  of  the  mineral  extracted  from  the  ore,  or  from  acci- 
dent or  failure  to  yield  enough  ore,  it  may  never  repay  its  first 
cost."  ^'^     It  is  for  the  operator,  acting  in  good  faith,  to  deter- 

27  Cassell  V.  Crothers,  103  Pa.  St.  29  Harness  v.  Eastern  Oil  Co.,  49 
359:  44  Atl.  Rep.  446;  Williams  v.  W.  Va.  232;  38  S.  E.  Rep.  662. 
Ladew,  171  Pa.  St.  369;  33  Atl.  Rep.  3o  Collins      v.    Mechling,     1     Pa. 
329.  Super.    Ct.   Rep.    594;    38   W.   N.   C 

28  Western  Pennsylvania  Gas  Co.  235;  26  Pittsb.  L.  J.   (N.  S.)  459. 
V.  George,    161   Pa.   St.  47;   28  Atl. 

Rep.  1004. 


154  OIL    x\ND    GAS. 

mine  when  the  lease  is  no  longer  profitable ;  and  the  lessor  can- 
not terminate  it  because  it  is  not  profitable  to  him  to  bave  it 
continiie.^^  It  is  for  tlie  lessee,  or  some  one  for  him  acting 
under  the  lease,  to  find  oil  in  paying  quantities  on  the  premise.- ; 
and  if  another  find  it  in  such  quantities,  not  acting  under  the 
lease,  that  will  not  prevent  a  tennination  of  the  lease.^'  Where 
the  lessor  reserved  the  right  to  select  four  acres  out  of  a  seventy- 
acre  tract  leased,  and  after  the  selection  of  the  four  acres  the 
lessee  drilled  a  well  on  the  remaining  part,  but  did  not  find  oil ; 
and,  with  the  assent  of  the  lessor,  a  well  was  drilled  by  the 
assignee  of  tlie  lessee  on  tlie  four-acre  tract,  which  produced 
oil  in  paying  quantities,  it  was  held  that  the  assignee  was  en- 
titled to  a  continuance  of  the  lease,  for  the  reason  that  the 
leased  property  was  producing  oil  in  paying  quantities.''^  A 
mere  cessation  of  the  use  of  gas  from  a  well  will  not  terminate 
the  lease  nor  relieve  the  lessee  from  a  liability  to  pay  a  rental 
so  long  as  gas  is  produced  in  paying  quantities,  but  the  lessee 
must  notify  the  lessor  that  the  well  has  ceased  to  produce  gas  in 
such  quantities,  and  for  that  reason  he  terminates  and  surren- 
ders the  lease.^*  Where  a  lease  provided  that  if  gas  be  "  found 
in  sufficient  quantities  to  justify  marketing"  it  an  annual  rent 
of  five  hundred  dollars  per  annum  for  each  well  should  be 
paid  "  so  long  as  it  shall  be  sold  therefrom,"  and  gas  being  ob- 
tained' in  such  quantities  to  justify  its  marketing,  it  was  held 
that  the  relation  of  landlord  and  tenant  was  established,  and  no 
good  reason  being  shown  why  he  should  not,  the  lessee  must 
market  the  gas  and  pay  the  rent.^^ 

§135.     Paying  quantities,  continued. 

Where  the  lessee  was  to  commence  a  test  well  within  ninety 
days  from  the  date  of  the  lease,   and   prosecute  the   drilling 

31  Young  V.  Forest  Oil  Co.,  194  ^s  Balfour  v.  Russell,  167  Pa.  St. 
Pa.  St.  243;  30  Pittsb.  L.  J.  (N.  S.)  287;  36  W.  N.  C.  22.5;  31  Atl.  Rep. 
221 ;    45    Atl.    Rep.    121,    reversing       570. 

Young  V.  Vandergrift,  30  Pittsb.  L.  34  Double  v.  Union  Heat,  etc.,  Co., 

J.   (N.  S.)   39.  172  Pa.  St.  388;   37  W.  N.  C.  389; 

32  Thomas   v.   Hukill,    34   W.   Va.       33  Atl.  Rep.  694. 

385;    12   S.   E.   Rep.  522.     See  Gar-  35  lams  v.   Carnegie  Natural   Gas 

man  v.  Potts,  135  Pa.  St.  506;  20  Co.,  194  Pa.  St.  72;  45  Atl.  Rep.  54. 
W.  N.  C.  305;  19  Atl.  Rep.  1071. 


DURATION    OF    LEASE.  155- 

"  with  due  diligence  to  success  or  abandonment,  and  should  oil 
be  pumped  or  excavated  in  paying  quantities  on  or  before  "  the 
end  of  one  year  from  the  date  of  the  lease,  then  the  lease  "  to 
be  null  and  void,"  and  the  lessee  began  tbe  prosecution  of  the 
work  on  time  and  prosecuted  it  until  the  middle  of  the  year 
when  he  withdrew  the  casing  and  left  the  premises  for  over  three 
months;  and  the  lessee  claimed  he  had  found  oil  in  paying 
quantities,  but  admitted  he  had  never  pumped  any  from  the 
well,  it  was  held  that  tlie  prosecution  to  success  required  the 
production  of  oil  or  gas  in  quantities  capable  of  division  be- 
tween the  parties,  according  to  the  terms  of  the  lease.^''  A 
lease  to* run  for  a  term  of  years,  "  or  so  long  as  oil  or  gas  is 
found  on  the  premises,"  providing  for  the  payment  of  a  certain 
rental  "  each  year  in  advance  for  every  well  from  which  gas  is 
used  off  the  premises,"  renders  the  lessee  liable  only  so  long  as 
he  uses  the  gas ;  and  upon  the  failure  of  tlie  well,  or  if  it  be- 
comes impracticable  to  use  the  gas  therefrom,  he  is  released  from 
all  liability/'  Where  the  term  was  for  years,  and  as  much 
longer  as  gas  or  oil  should  be  found  in  paying  quantities ; 
and  one  well  w^as  drilled  which  produced  gas  in  paying  quan- 
tities, and  then  failed ;  it  was  held,  upon  failure  of  the  well, 
that  the  lessee  Avas  entitled  to  a  reasonable  lengtli  of  time  to 
drill  at  another  location  on  the  premises.',  for  the  purpose  of 
finding  oil  or  gas.  "  Does  the  language  mean,"  asked  the  court, 
'"  that  it  is  only  so  long  as  gas  or  oil  is  found  in  paying  quan- 
tities in  the  first  well  drilled,  and  that,  when  it  fails,  the  lease 
expires  as  to  the  entire  premises  ?  The  whole  premises  was  held 
by  this  lease  for  five  years,  and  as  much  longer  as  gas  or  oil 
is  found  in  paying  quantities ;  not  found  in  paying  quantities 

36  Kennedy  v.   Crawford,   13S   Pa.  ises  were  situated,  or  that  the  usage 

St.  561;   27  W.  N.  C.  306;   21  All.  was  known  to  the  lessor  and  lessee 

Rep.    191.  at  that  time.     Collins  v.   Mechling, 

An  offer  to  prove  that  the  phrase  1   Super.  Ct.    (Pa.)    594;    38  W.  N. 

"paying    quantities"   has   a   known  C.    235;    26    Pittsb.    L.    J.    (N.    S.) 

significance   in  oil  regions  must  be  459. 

accompanied   by    an    offer    to    show  3'  Indianapolis  Gas  Co.  v.  Teters 

that  such  significance  existed  when  15  Ind.  App.  475;  44  N.  E.  Rep.  549. 

the  lease  was  executed  in  the  neigh-  See    Jlonfort    v.    Lanyon    Zinc    Co. 

borhood  in  which  the  leased  prem-  (Kan.)   72  Pac.  Rep.  784. 


156  OIL    AND    GAS. 

in  one  well,  but  found  in  such  quantities  v/hen  proper  and 
reasonable  search  is  made  for  it."  ^^  Where  on  the  first  of  Sep- 
tember an  annual  rental  from  the  date  of  drilling  a  gas  well 
was  payable,  and  the  well  was  drilled  j^ovember  1,  1893,  and 
the  rent  for  the  two  succeeding  years  was  paid,  but  on  Septem- 
ber 1,  1896,  the  Avell  was  abandoned  as  unprofitable,  it  was  held 
that  the  lessor  was  entitled  to  recover  a  ratable  part  of  the  an- 
nual rental  for  tlie  year  in  which  the  well  was  abandoned,  but 
could  not  recover  rent  for  the  time  after  such  abandonment.^" 
If  a  rental  is  to  be  paid  for  a  gas  well  and  a  royalty  for  tlie  oil 
produced,  the  lessee  is  not  liable  for  rental  for  a  gas  well  which 
produces  a  little  gas,  although  the  gas  from  it  is  used  for  run- 
ning the  boilers  on  the  premises.'"'  An  agreement  to  prospect, 
and  if  oil  be  found  in  a  certain  amount  the  royalty  to  be  not  less 
than  a  designated  amount  of  money,  and  that  a  failure  to  sur- 
render the  lease  by  a  certain  day  shall  be  an  agi'eement  that 
there  is  sufiicient  oil  to  pay  the  royalty  named,  will  not  render 
a  failure  to  surrender  conclusive  of  the  amount  of  the  oil  found, 
but  it  will  cast  upon  the  lessee  the  burden  to  show  that  the 
amount  found  was  less  than  the  amount  specified  in  the  lease.*^ 
A  lease  for  three  years,  or  so  long  as  oil  or  gas  should  be  found 
in  paying  quantities,  provided  that  the  lessor  was  to  receive  a 
share  of  the  oil  produced ;  and  if  gas  w\ts  found  producing  one 
hundred  pounds  pressure  to  the  square  inch  in  tliirty  seconds, 
the  lessee  had  the  right  to  consume  enough,  free  of  cost,  to  light 
and  heat  his  dwelling;  but  if  it  exceeded  two  hundred  pounds, 
he  was  to  pay  a  certain  rental  per  well ;  it  was  held  that  he  w^as 
not  bound  to  pay  any  rental,  or  compensation  or  damage  for 
occupation  or  use  of  the  premises  before  or  after  the  expiration 
of  ihe  three  years,  where,  during  such  three  years,  he  had  drilled 
only  one  well  which  produced  a  pressure  of  less  than  two  hun- 
dred  pounds,   but  which   had   furnished  gas   for   lighting  and 

38  Blair    v.     Northwestern     Ohio,  4o  Taylor  v.   Peerless,   etc.,   Co.,   7 

etc..  Co.,   12  Ohio  Cir.  Ct.  Rep.   78;  Ohio  Cir.  Dec.  368;   14  Ohio  Cir.  Ct. 

5  Ohio  C.  D.  Gin.  Rep.  315. 

snMoon  v.  Pittsburgh  Plate  Glass  4i  IMcCahan  v.   Wharton,   121   Pa. 

Co.,  24  Ind.  App.  34;  56  N.  E.  Rep.  St.  424;  15  Atl.  Rep.  615. 
108. 


DURATION    OF    LEASE.  157 

heating  his  residence.*"  A  lease  containing  a  provision  that 
the  premises  shall  be  worked  so  long  as  it  can  be  "  advanta- 
geously "  done  means  so  long  as  it  can  be  "  beneficially  "  or 
"  profitably  "  done.*' 

§136.     Gas  in  paying  quantities. 

A  somewhat  different  rule  from  that  followed  in  oil  wells 
must  be  adopted  when  the  pkrase  paying  quantities  is  applied 
to  a  gas  well,  or,  j3erhaps,  to  speak  moi'e  accurately,  the  phrase 
"  paying  quantities  "  as  applied  to  a  gas  well  requires  different 
conditions  to  render  the  lessee  liable  than  it  does  to  render  him 
liable  when  applied  to  an  oil  well.  In  the  early  operation  of  oil 
wells  the  oil  flowed  from  the  well;  but  as  the  supply  lessened, 
or  the  pressure  of  gas  beneath  it  decreased,  pumping  was  intro- 
duced. It  was  found  that  oil  wells  could  be  pumj>e.d  at  little 
expense,  and  their  operation  remain  profitable.  Many  wells, 
hundreds  of  feet  apart,  could  be  operated  with  a  single  power 
plant  of  no  great  power.  But  in  the  case  of  gas  it  was  differ- 
ent. The  pressure  at  the  mouth  of  the  well  was  the  force  first 
used  to  carry  the  gas  through  the  pipes  to  the  consumer,  who 
was  often  many  miles  away.  Gradually  pumps  were  intro- 
duced, when  the  pressure  of  the  gas  declined,  or  it  was  desired 
to  carry  it  to  a  longer  distance  than  the  ordinary  pressure  would 
carry  it.  A  gas  pump  is  a  costly  instrument ;  and  to  operate  it 
requires  experts  and  costly  machineiy  and  a  large  amount  of 
capital.  Even  today  it  may  be  said  to  be  an  unusual  thing  to 
pump  gas ;  while  it  is  a  universal  thing  to  pump  oil.  These 
phases  of  the  subject-  have  been  ably  discussed  by  the  Supreme 
Court  of  Pennsylvania,  in  the  following  language : 

"  A  lease  of  a  mine  or  a  quarry,  at  a  rental  to  be  fixed  by 
reference  to  the  quantity  of  material  removed  therefrom,  im- 
plies an  agreement  on  the  part  of  the  lessee  to  work  the  mine 
or  quarry.  The  reason  is  that,  while  the  lessor  does  not  lose  his 
material  out  of  the  mine  or  quarry,  he  loses  his  income  there- 

42  Oak  Harbor  Gas  Co.  v.  Murphy,  506;  26  W.  N.  C.  305;  19  Atl.  Rep. 
7  Ohio  Dec.   700.  1071. 

43Garnian   v.   Potts,    135   Pa.   St. 


158  OIL    AND    GAS. 

from.  A  lease  of  land  for  oil  purposes  imposes  a  somewhat  dif- 
ferent obligation  upon  the  lessee.  The  oil  is  of  such  a  nature 
that,  if  not  removed  through  wells  upon  the  surface  of  the 
leasehold,  it  may  be  wholly  lost  to  the  owner  of  the  land  by  rea- 
son of  operations  on  lands  adjoining.  The  duty  to  develop  the 
land,  that  is,  to  test  thoroughly  the  existence  of  oil  in  the  rocko 
that  should  bear  it,  and  if  oil  be  found,  to  sink  so  many  wells 
as  may  be  reasonably  necessary  in  view  of  surrounding  opera- 
tions to  secure  so  much  of  the  oil  underlying  the  land  as  may 
be  obtained  with  profit,  gTows  out  of  the  nature  of  oil,  and  the 
methods  by  which  the  oil  is  reached  and  brought  to  the  surface^ 
An  oil  lease  must  be  construed,  therefore,  with  a  due  regard  to 
the  known  characteristics  of  the  business.  Oil  and  gas  leases 
are  ordinarily  combined  in  the  same  instrument,  and  are  classed 
together.  For  many  purposes  such  classification  is  natural  and 
appropriate,  but  this  case  brings  us  to  consider  an  important 
difference  between  oil  and  gas,  which  makes  it  necessary  to  dis- 
tinguish for  some  purposes  between  an  oil  and  a  gas  lease. 
Oil,  when  brought  to  the  surface,  is  gathered  into  a  receiving 
tank  or  tanks  at  or  near  the  well.  When  necessary  or  desirable, 
it  is  removed  by  gravity  or  by  pumping  into  the  pipe  lines  that 
serve  the  district  in  which  the  well  is  located,  aaid  conveyed  to 
storage  tanks,  where  it  remains  until  delivered  to  a  purchaser. 
It  is, a  matter  of  no  consequence  what  the  pressure  may  be  at 
the  well,  for  there  can  be  none  in  the  tanks  except  that  of  grav- 
ity. The  w^ell  that  throws  off  violently  its  five  thousand  bp/i'rels 
per  day  and  that  which  reluctantly  gives  up  four  or  five  barrels 
under  the  persuasive  power  of  the  pump  will  have  their  product 
gathered  into  the  same  lines  of  transportation,  or  resting  in  the 
same  storage  tanks.  Gas  cannot  be  gathered,  stored,  or  trans- 
]X)rted  in  this  manner.  If  found  in  sufficient  quantity,  it  is 
turned  from  well  into  the  line,  and  the  pressure  at  the  mouth 
of  the  well  is  the  motive  power  by  which  it  is  driven  through 
the  line  to  the  consumers'  line.  If  the  pressure  at  a  given  v/eM 
is  much  below  that  in  the  line  with  which  it  is  connected,  tlie 
gas  from  that  well  cannot  enter  the  line,  but  will  be  drivc^i  b-^ck 
by  the  superior  force  it  encou];ters  at  the  point  of  criiino"[i"''. 
For  this  reason,  a  w-ell  producir'T  g-^s  in  sufficient  qunntitv  to  be 


DURATION    OF    LEASE. 


159 


profitably  utilized  if  there  Avas  a  market  for  it  near  at  hand, 
raaj  be  entirely  valueless  if  its  product  must  find  a  market  at  a 
distance  too  great  to  justify  its  transportation  by  a  line  of  its 
own.      In  an  oil  district,  each  well,  no  matter  how  large  or  how 
small  its  product  may  l>e,  is  separately  operated,  and  a  well  may 
be  profitably  operated  so  long  as  its  yield  pays  more  than  the 
cost  of  producing  the  oil.     In  a  gas  district  this  is  impracticable. 
The  product  of  many  wells  is  gathered  into  one  line  so  long  as 
the  pressure  is  sufficient.     When  the  pressure  in  any  one  falls 
below  the  standard  necessary  for  purposes  of  transportation, 
that  well  must  be  turned  off.     Its  product  cannot  be  transported 
separately,  and,  unless,  it  can  be  used  near  by,  it  is  valueless. 
These  well  known  facts  peculiar  to  the  production  of  gas  must 
be  taken  into  account  in  the  construction  of  leases  for  gas  pur- 
poses."    '^  As  we  have  already  seen,  every  barrel  of  oil  brought 
to  the  surface  may  be  utilized  in  the  same  manner.     ^Vhether 
the  well  that  produces  it  is  a  strong  one,  yielding  many  barrels 
per  day,  or  a  weak  one,  yielding  but  few,  is  a  matter  that  in  no 
way  affects  the  ability  of  the  producer  to  market  his  oil,  or  the 
prices  to  be  obtained  for  it.     In  gas  territory,  the  lessee  may 
sink  many  wells  and  find  gas  in  them  all,  but  he  can  only  utilize 
such  of  them  as  have  a  volume  and  pressure  sufficient  to  enable 
him  to  transport  the  gas  through  his  line  and  deliver  it  to  tlie 
purchaser.     If  no  one  of  them  has  the  requisite  pressure,  then 
no  one  of  them  can  be  utilized  ;  the  gas  must  be  wasted,  the  cost 
of  the  wells  will  be  lost,  and  the  lessor  entitled  to  no  royalty. 
What  is  the  proper  way  to  develop  and  operate  a  gas  lease  is, 
therefore,  a  question  beset  with  some  difficulty.     Its  settlement 
requires   some   general   knowledge  of  the  business,   and   some 
knowledge  of  the  local  field.     The  lessee  may  have  a  good  well, 
from  which  he  can  utilize  the  gas  with  profit.     He  may  put 
down  another  on  the  same  farm,   and  thereby  so  reduce  the 
pressure  in  the  first  as  wholly  to  destroy  its  value,  without  get- 
ting a  sufficient  pressure  at  the  second  to  enable  him  to  utilize 
that.      The  gas,  if  coming  from  one  well,  would  be  of  great 
value.     Divided  in  such  manner  that  the  volume  and  pressure 
at  each  is  below  the  necessary  standard,  the  whole  is  lost.     Thus 
the  application  of  tbe  rule  laid  down  by  the  court  below,  as  the 


160  OIL    AND    GAS. 

jury  must  have  understood  it,  might  result  in  this,  that  the  ef- 
fort of  the  lessee  to  discharge  the  implied  obligation  of  his  con- 
tract for  the  common  benefit,  should  end  in  the  total  destruction 
of  the  leasehold,  and  a  common  misfortune.  The  mistake  of 
die  court  below  was  in  failing  to  take  account  of  and  to  read 
into  the  contract  between  the  parties,  the  peculiar  nature  and 
characteristics  of  the  business  of  producing  and  transporting 
gas,  which  the  parties  themselves  well  understood,  and  which 
their  contract  shows  were  before  their  minds  when  it  was  en- 
tered into."  **  So  long,  however,  as  the  lessee  sells  gas  from  a 
well,  by  running  it  into  pipes  connected  with  it,  it  is  conclusive 
evidence  of  the  right  of  the  lessor  to  recover  rent.'*^  A  gas  well 
that  supplies  five  stoves,  one  grate,  three  jets,  and  two  street 
lights  produces  gas  in  paying  quantities,  where,  after  the  quan- 
tity is  known,  all  parties  thereto  join  in  or  assent  to  the  laying 
of  pipe  for  its  use  and  the  expenditure  of  money  for  such  ma- 
terials and  work.**' 

§137.     Abandonment. 

The  distinction  between  an  abandonment  and  a  forfeiture  is 
often  so  thin  as  not  to  be  distinguishable.  And  yet,  broadly 
speaking,  there  is  a  difference,  which  may  in  a  measure  be 
stated  thus :  An  abandonment  rests  upon  the  intention  of  the 
lessee  to  relinquish  the  premises,  and  is  therefore  a  question  of 
fact  for  the  jury ;  ^'^  while  a  forfeiture  does  not  rest  upon  an 
intent  to  release  the  premises,  but  is  an  enforced  release.  The 
act  that  authorizes  the  declaration  by  the  lessor  of  a  forfeiture 
may  be  unintentionally,  or  unavoidably,  committed  by  the  lessee, 
\i^ith  no  design  to  relinquish  his  lease,  and  yet  will  work  a  for- 

*4  McKnight     v.     Manufacturers',  4g  Herrington  v.  Wood,  6  Ohio  Cir. 

etc.,   Co.,   146  Pa.   St.    185;    23   Atl.  Ct.  Rep.  326;   3  Ohio  Cir.  Dec.  475. 

Rep.  164;  28  Am.  St.  Rep.  790;  In-  47  Beatty  v.  Gregory,   17  la.  109; 

dianapolis  Gas  Co.  v.  Teters,  15  Ind.  Bartley  v.  Phillips,  165  Pa.  St.  325; 

App.  475;   44  N.  E.  Rep.  549.     See  30  Atl.  Rep.  842;  Whitcomb  v.  Hoyt, 

Glasgow   V.   Chartiers   Oil    Co.,    152  30  Pa.   St.   403;    Calhoon   v.   Neely, 

Pa.  St.  148;  25  Atl.  Rep.  232.  201   Pa.   St.  97;    50  Atl.  Rep.   967; 

45Hankey  V.  Kramp.  12  Ohio  Cir.  Lowther    Oil     Co.    v.    Miller-Sibley 

Ct.  Rep.  95;  5  Ohio  C.  D.  439.  Oil  Co.   (W.  Va.)  44  S.  E.  Rep.  433. 


DURATION    OF    LEASE.  161 

feiture.  It,  however,  matters  little  to  the  lessee  or  lessor,  for 
in  either  instance  he  loses  his  lease  and  his  term  is  ended. 
Whether  or  not  a  lease  has  been  abandoned  is  a  matter  of  de- 
fense, and  need  not  be  negatived  by  the  plaintiff  in  an  action 
for  the  rent.*^  If  the  lessee  in  fact  abandon  the  lease  for  the 
purpose  for  which  it  was  granted,  it  is  not  necessary  for  him 
to  yield  up  actual  possession  of  the  surface,  to  enable  the  lessor 
to  declare  an  abandonment  has  been  made.*^  Rent  falling  due 
or  accruing  before  abandonment  must  be  paid.^°  The  lessee 
cannot  abandon  a  part  of  the  premises  and  retain  a  part ;  to 
render  his  act  of  abandonment  effectual  he  must  abandon  the 
whole  premises  and  all  his  rights  under  the  lease.^^  If  the 
lessor  acquiesce  in  the  temporary  or  other  cessure  of  work  for  a 
period  extending  beyond  the  time  when  the  work  was  to  have 
been  completed,  he  cannot  because  of  each  cessure,  especially 
where  the  lessee  has  resumed  operations  at  a  considerable  ex- 
pense to  himself,  insist  that  there  has  been  an  abandonment.^^ 
"  As  against  any  one  but  the  grantor,  an  abandonment  is  not 
complete  until  the  statutory  period  of  limitation  or  the  end  of 
the  term  granted,  and  possession  may  be  resumed  by  the  grantee 
at  any  time  previous."  ^^  A  privilege  to  mine  for  gokl  that  is 
a  personal  privilege,,  is  terminated  by  abandonment  by  the  per- 
son to  whom  it  was  given."''*  If  the  lease  be  once  abandoned, 
the  lessee  cannot  resume  operations  under  it,  without  the  con- 
sent of  the  lessor.^^  Expenses  of  a  grantee  in  drilling  wells 
after  abandonment  and  notice  by  the  lessor  not  to  drill  them  can- 
not be  recovered  from  the  grantor.^" 

48  McDowell   V.   Hendrix,   67    Ind.  52  Riddle   v.   Mellon,    147    Pa.    St. 

513.  30;   23  Atl.  Rep.  241. 

*9  Eaton     V.     Allegany     Gas    Co.,  ss  Bartley    v.    Phillips,     165    Pa. 

122  N.  Y.  416;  25  N.  E.  Rep.  981;  St.  325;   30  Atl.  Rep.  842;   Bartley 

reversing   42   Hun   61;    Gadbury   v.  v.  Phillips,  179  Pa.  St.  175;  36  Atl. 

Ohio,  etc.,  Gas  Co.    (Ind.),  67  N.  E.  Rep.    217.     See    Eaton    v.    Allegany 

Rep.  249.  Gas  Co.,    122  N.   Y.   416;   25   N.   E. 

50  Buhl    V.    Tliompson,    3    Penny  Rep.  981 ;  reversing  42  Hun  61. 
(Pa.)    267.     See  Smiley  v.  Western,  s*  Hodgson    v.     Perkins,     84     Va. 
etc.,  Co.,  138  Pa.  St.  576;  27  W.  N.  706;   5  S.  E.  Rep.  710. 

C.  230;  21  Atl.  Rep.  1.  55  Cole  v.  Taylor,  8  Pa.  Super.  Ct. 

51  Bestwick   v.    Ormsby   Coal    Co.,       Rep.  19. 

129  Pa    St.  592;  18  Atl.  Rep.  538.  5g  Detlor  v.  Holland,   57   Ohio  St. 


162  OIL    AlS^D    GAS. 

§138.     Lessee  may  abandon  non-productive  premises. 

As  the  object  in  leasing-  oil  or  gas  premises  is  to  secure  the  oil 
or  gas  beneath  the  surface,  as  soon  as  it  has  been  demonstrated 
that  no  oil,  in  case  of  an  oil  lease,  or  no  gas,  in  case  of  a  gas 
lease,  is  beneath  the  surface,  or  it  does  not  exist  in  paying  quan- 
tities, the  lessee  may  abandon  the  premises  or  his  lease ;  or  if  the 
oil  or  gas  becomes  exhausted  he  may  in  like  manner  abandon 
them.  This  is  true  of  other  minerals.  Thus  where  a  lease  re- 
quired the  lessee  to  mine  at  least  a  certain  quantity  of  iron  ore 
each  year  and  pay  a  royalty  thereon,  or  even  if  not  mined  pay 
the  royalty,  it  was  held  that  if  the  ore  become  exliausted  during 
the  term  the  lessor  was  not  thereafter  entitled  to  royalties.^^ 
And  the  same  is  true  if  the  mineral  is  not  merchantable;  for  it 
cannot  be  understood  that  the  parties  contemplated  the  mining 
of  unmarketable  ore.^^  Where  a  lessee  covenanted  to  pay  so 
much  for  each  ton  of  coal  mined,  and  for  any  period  of  three 
years  after  the  first  the  aggregate  royalty  should  not  be  less  than 
ten  thousand  dollars,  whether  ore  to  that  extent  was  mined  or 
not,  it  was  held  that  the  lessee  could  show  as  a  defense,  when 
an  action  was  brought  to  recover  the  royalty  due  for  the  second 
period  of  three  years,  that  the  ore  contained  in  the  leased  prem- 
ises was  not  sufficient  in  quantity  to  produce  the  amount  of  rent 
or  royalty  claimed  by  the  lessor,  and  that  too  even  though  judg- 
ment for  the  rent  due  on  the  first  period  of  three  years  had  been 
recovered. ^'^  But  an  absolute  agreement  to  pay  for  so  much 
coal,  whether  there  is  coal  or  not,  will  defeat  a  defense  that  there 
was  no  coal  on  the  leased  premises.*^" 

492;   49  N.  E.  Rep.  690;   39  Wkly.  66    Iowa   21;    23   N.    W.   Rep.    159. 

.-TL.   Bull.   187.  Contra,  Clark  v.  Midland,  etc..  Co., 

57  Hewitt  Iron  Mining  Co.  v.  Des-  21  Mo.  App.  58;  Indianapolis,  etc., 
sau  Co.,  129  Mich.  — ;  89  N.  W.  Co.  v.  Teeters,  15  Ind.  App.  475;  44 
Rep.  365.  N.  E.  Rep.  549. 

St.  138;  9  Atl.  Rep.  144.     See  John-  59  Kemble   Coal    and    Iron    Co.    v. 

ston  V.  Cowan,  59  Pa.  St.  275 ;  Grib-  Scott.  90  Pa.  St.  332 ;  Boyer  v.  Fiil- 

58  Muhlenberg  V.  Herining,  116  Pa.  mer,  176  Pa.  St.  282;  35  Atl.  Rep. 
ben  V.  Atkinson.  64  Mich.  651;  31  235.  See  McCahan  v.  Wharton,  121 
N.  W.  Rep.  570;  Cook  v.  Andrews,  Pa.  St.  424;   15  Atl.  Rep.  615. 

36  Ohio  St.  174;  Brick,  etc.,  Co.  v.  6o  Timlin   v.    Brown,    158    Pa.   St. 

Pond,  38  Ohio  St.  65;  Read  v.  Beck,       606;  28  Atl.  Rep.  236. 


DURATION    OF    LEASE.  163 

§139.     Completion  of  non-productive  well. —  Title. 

So  thoroughly  fixed  in  the  law  of  oil  or  gas  leases  is  the  prin- 
ciple that  if  the  leased  premises  prove  non-productive  no  title 
to  them  vests  in  the  lessee,  that  the  completion  of  a  non-pro- 
ductive well,  even  though  at  great  expense,  will  not  vest  a  title 
to  such  premises  in  the  lessee.*'^ 

§140.     Instances  of  abandonment. 

Ceasing  to  operate  a  coal  mine,  and  removing  the  machinery 
and  appliances,  was  held  a  sufficient  abandonment,  without  a 
surrender  of  tlie  lease  or  cancellation  of  mortgages  of  the  lease- 
hold that  were  on  record.""  Where  a  lease  of  a  coal  mine  was 
given  in  1858,  a  rental  to  be  paid  per  annum  on  a  minimum 
amount  of  coal ;  but  the  lessee,  thinking  the  mines  not  worth 
working,  never  went  on  the  lands,  and  in  1871  ceased  paying 
rent,  it  was  held  that  in  1879  the  lessor  had  a  right  to  consider 
the  premises  abandoned  and  to  relet  them.'^^  Where  a  coal 
lease  requires  the  lessee,  in  case  he  abandoned  the  premises,  to 
notify  the  lessor,  it  is  immaterial  whether  or  not  he  gives  such 
notice,  if  he  in  fact  abandon  them ;  and  finding  quantities  of 
coal  that  will  not  justify  mining  it  will  not  change  the  rule.*^* 
Where  a  lease  was  executed  in  1878,  for  oil  and  gas,  but  the 
lessees  never  entered  upon  the  premises,  because  of  the  fact  they 
had  drilled  a  well  near  the  leased  premises  which  proved  to  be 
a  dry  well ;  and  twelve  years  afterward  the  premises  having  be- 
come valuable  by  reason  of  other  territory  in  the  neighborhood 
proving  to  be  good  for  oil,  when  the  lessees  claimed  the  leased 
premises,  it  was  held  that  by  their  conduct  they  had  not  only 
abandoned  but  surrendered  the  premises.*^'''     A  lease  was  given 

61  hteelsmith    v.    Gartlan,    45    W.  62  Van  Meter  v.  Chicago,  etc.,  Co., 

Va.  27;  29  S.  E.  Rep.  978;  44  L.  R.  88  Iowa  92;  55  N.  W.  Rep.  106. 

A.  107;   Barnhart  v.  Lockwood,  152  63  Porter  v.  Noyes,  47  Mich.  55; 

Pa.  St.  82;  31  W.  N.  C.  209;  25  Atl.  10  N.  W.  Rep.  77. 

Rep.    237;    Detlor    v.    Holland,    57  e*  East  Jersey  Co.  v.  Wright,   32 

Ohio  St.  492;    49  N.   E.   Rep.   090;  N.  J.  Eq.  248. 

Huggins  V.  Daley,  99  Fed.  Rep.  606;  65  Barnhart  v.  Lockwood,  152  Pa. 

48  T.  R.  A.  320.  St.  82;  25  Atl.  Rep.  237. 


164  OIL    AND    GAS. 

"  for  the  sole  and  only  purpose  of  mining  and  excavating  for  pe- 
troleum, or  carbon  oil,  gas,  or  other  valuable  mineral  or  volatile 
substances,"  for  twenty  years,  the  consideration  being  one- 
eighth  of  the  product.  It  provided  that  "  the  party  of  the  sec- 
ond part  covenants  to  commence  operations  for  said  mining  pur- 
poses within  six  months  ...  on  some  one  of  the  farms 
leased  .  .  .  and  when  oil  is  found  in  paying  quantities, 
then  he  agrees  to  commence  operations  wathin  sixty  days  upon 
the  next  adjoining  farm  leased  by  him,  and  so  on  until  all 
lands  (hereby)  leased  in  the  township  are  tested  to  success  or 
abandonment."  The  lessee  began  operations  and  drilled  a  well 
on  another  farm,  but  found  neither  oil  nor  gas.  He  made  no 
further  effort  to  test  the  land,  for  the  reason  that  he  thought  the 
territory  was  worthless  as  oil  land.  Six  years  after  the  lessor 
gave  a  second  oil  lease  on  the  territory  to  a  third  party.  It 
was  held  that  the  last  lease  was  valid,  because  the  first  one  had 
been  abandoned."''  An  oil  lease  provided  that  the  lessees  "'  shall 
have  the  right  at  any  time  to  surrender  up  this  lease,  and  be 
released  from  all  money  due  and  conditions  unfulfilled."  It 
gave  the  lessor  no  right  to  rescind.  There  was  no  express 
covenant  on  the  part  of  the  lessees  to  develop  the  land ;  but  they 
agreed  to  bore  a  well  or  pay  one  hundred  dollars  a  month  if  they 
did  not.  The  lessees  never  took  possession  of  the  land.  On  the 
trial  it  was  shown  that  after  the  first  two  payments  had  been 
made,  two  of  the  three  lessees  requested  of  the  lessor  for  time 
on  the  third  monthly  payment;  and  it  was  agi'eed  that  th© 
time  should  be  extended  three  weeks,  and  if  the  rent  by  that 
time  was  not  paid,  they  should  surrender  the  lease.  The  money 
was  not  paid  as  agreed ;  and  one  of  the  lessees  told  the  lessor 
■^hat  he  could  lease  the  property  to  any  one,  and  that  the  lease 
would  be  returned.  It  was  never  redelivered.  Sixteen  months 
afterward  the  owner  executed  a  second  lease  of  the  premises  to 
a  third  party.  It  was  held  that  there  had  been  a  rescission  of 
the  lease ;  and  a  tender  of  the  monthly  rental  after  the  rescission 
could  not  revive  the  lessees'  rights  or  privileges.*'^     Of  cour.^e, 

ofi  Venture  Oil  Co.  v.   Fretts,   152  b^  Hooks    v.    Forst,     165    Pa.    St. 

Pa.   St.   451;    25   Atl.  Rep.   732;    31       238;   30  Atl.  Rep.  84G. 
W.   N.  C.  432. 


DUEATIOX    OF    LEASE.  165 

after  the  lessee  has  abandoned  the  lease  the  lessor  is  no  longer 
bound. "^^  A  lease  on  a  royalty  of  so  much  per  ton,  on  coal 
mined,  of  coal  lands  for  ninety-nine  years  is  abandoned  where 
nothing  is  done  by  the  lessee  for  seventeen  years  f^  and  so  for 
eleven  years.'**  Under  a  five-year  lease,  or  as  long  as  gas  and 
oil  may  be  found  in  paying  quantities,  and  a  conveyance  to  the 
lessee  of  a  part  of  the  land  is  made,  in  the  deed  of  conveyance, 
it  being  provided  that  it  shall  not  affect  the  rights  of  the  gi-antee 
under  tlie  lease  and  tliat  a  certain  payment  shall  be  in  full  pay- 
ment of  all  the  lease  rental  and  royalty  thereunder  until  the  time 
when  other  wells  are  drilled  and  the  product  taken  from  them  — 
the  lessee  cannot  begin  operations  on  the  land  not  conveyed  after 
the  expiration  of  five  years.'^^  A  lease  was  given  for  ten  years, 
and  as  long  thereafter  as  oil  and  gas  were  found  in  paying  quan- 
tities. The  lessee  was  required  to  drill  a  well  within  one  year. 
Pie  had  the  right  to  abandon  the  premises  at  any  time,  but  the 
abandonment  was  not  to  deprive  him  of  the  right  to  convey  oil 
and  gas  over  the  land  from  other  lands,  on  an  annual  rental. 
He  completed  a  well  on  time,  which  was  unproductive.  Two 
years  after  the  lease  was  granted,  he  notified  the  lessor  of  his  in- 
tention to  abandon  the  well ;  drcAv  the  casing,  and  removed  all 
his  machinery.  Subsequently  he  drilled  wells  and  conducted 
operations  at  great  cost  in  the  vicinity,  but  made  no  search  on 
the  leased  premises.  Five  years  after  he  abandoned  his  search, 
the  lessor  requested  him  to  surrender  the  lease,  which  he  refused 
to  do,  and  afterwards  recorded  it.  In  an  action  involving  its 
validity,  he  testified  tliat  he  had  never  intended  to  abandon  the 
lease;  but  the  court  held  that  a  finding  of  abandonment  was 
justified  by  the  evidence.^'  A  non-exclusive  right  to  enter  on 
lands  for  mining  purposes  only  and  to  pros]3ect  thereon  and 
mine  them,  does  not  prevent  tlie  grantor  and  his  grantees  from 

OS  Cowan  v.  Radford  Iron  Co.,  83  to  Welty  v.  Wise.  5  Ohio  N.  P.  50. 

Va.  547;   3  S.  E.  Rep.   120.  ti  Simon    v.    Northwestern    Ohio, 

caBluestone  Coal  Co.  v.  Bell,   38  etc..  Co.,  12  Ohio  Cir.  Ct.  Rep.  170; 

W.  Va.  297;  18  S.  E.  Rep.  493.     Oil  5  Ohio  C.  D.  456. 

lease    abandoned    by    twenty    years'  72  stage    v.    Boyer,    183    Pa.    St. 

non-user.     Wagner    v.    Mallory.    41  560;    38   Atl.   Rep.   1035;    Heintz  v. 

N.  Y.  App.  Div.  126;  58  N.  Y.  Supp.  Shortt,    149    Pa.    St.    286;    24    Atl. 

c26.  Rep.  316. 


166  OIL    AND    GAS. 

prospecting  and  mining  on  the  same  land ;  and  no  presumption 
of  an  abandonment  of  the  first  right  granted  arises  from  the 
fact  that  similar  rights  were  exercised  by  tlie  grantor  and  his 
grantee."  If  a  lease  requires  that  the  work  of  testing  a  well 
shall  be  prosecuted  with  due  diligence,  a  cessure  of  operations 
for  three  months  after  work  begun  is  an  abandonment  of  it.^* 

§141.     Cessure  of  work  after  operations  begun. 

A  cessure  of  work  will  operate  as  a  termination  of  a  lease 
by  abandonment,  especially  where  tlie  first  or  second  well  proves 
to  be  a  dry  one.  Thus  where  a  lease  was  for  ^'  fifteen  years,  and 
as  much  longer  as  oil  or  gas  is  found  in  paying  quantities  "  ; 
and  the  lessee  erected  a  "  rig,"  drilled  a  test  well,  but  obtained 
no  oil ;  and  thereupon  removed  the  machinery  used  in  drilling, 
leaving  nothing  but  a  wooden  tank,  which  rotted,  asserting  no 
title  to  the  premises  for  nine  years,  when  other  lessees  found  oil 
in  paying  quantities,  it  was  held  that  the  first  lease  had  been 
terminated  by  an  abandonment.^^  But  a  tem]X)rary  suspension 
after  the  well  has  been  sunk,  which  proves  a  dry  one,  while 
awaiting  further  developments  in  the  vicinity,  will  not  operate 
as  an  abandonment  of  the  lease.^''     A  cessure  for  two  years, 

73  Woodside  v.  Ciceroni,  93  Fed.  75  Calhoon  v.  Neely,  201  Pa.  St. 
Rep.  1;   35  C.  C.  A.   177.  97;   50  Atl.   Rep.  967;    Barnhart  v. 

74  Kennedy  v.  Crawford,  138  Pa.  Loekwood,  152  Pa.  St.  82;  31  W.  N. 
St.  561;  21  Atl.  Rep.  19;  Monroe  C.  209;  25  Atl.  Rep.  237;  McXish 
V.  Armstrong,  96  Pa.  St.  307;  Steel-  v.  Stone,  152  Pa.  St.  457;  23  Pittsb. 
smith  V.  Gartlan,  45  W.  Va.  27;  29  L.  J.  (N.  S.)  232  Rorer  Iron  Co.  v. 
S.  E.  Rep.  978;  44  L.  R.  A.  107;  Tront.  S3  Va.  397;  2  S.  E.  Rep.  713; 
Hviggins  V.  Daley,  99  Fed.  Rep.  606 ;  Gadbury  v.  Ohio,  etc.,  Gas  Co. 
48  L.  R.  A.  320.  (Ind.).  67  X.  E.  Rep.  249;   Ameri- 

^    See    also    Coffinberry    v.    Sun    Oil  can  ^^Mndow  Glass  Co.   y.  Williams 

Co.   (Ohio),  67  N.  E.  Rep.  1009.  (Ind.  App.),  66  N.  E.  Rep.  912. 

Where  a  lessee  of  a  coal  mine  The  lessees  "  were  not  bound  to 
left  his  tools  on  the  premises  for  do  more  than  make  a  reasonable 
two  years,  but  did  not  work  the  search  for  oil,  but  they  were  bound 
mine,  it  was  held  he  had  not  aban-  to  operate  or  quit;  they  could  not 
doned  the  mine,  nor  had  he  aban-  hold  or  quit."  Munroe  v.  Arm- 
doned  stone  he  had  quarried  and  strong,  96  Pa.  St.  317;  Ray  v.  Nat- 
left  on  the  ground.  Russell  v.  ural  Gas  Co.,  13S  Pa.  St.  576;  20 
Stratton,  201  Pa.  St.  277;  50  Atl.  Atl.  Rep.  1065:  12  L.  R  A.  290. 
Rep    975.  ""  Baumgardner   v.   Browning,    12 


DURATION    OF    LEASE.  167 

although  oil  has  been  found  in  paying  quantities,  will  work  in 
equity  a  forfeiture  of  the  lease.^^  Where  a  lease  was  to  run 
fifteen  years  in  consideration  of  a  payment  of  fifty  dollars,  and 
one-eightli  of  the  oil  obtained ;  and  the  lessee  covenanted  to  begin 
operations  to  secure  oil  "  so  as  to  complete  the  first  well  within 
six  months  from  "  the  date  of  the  lease,  or  thereafter  within 
sixty  days  to  remove  all  the  machinery  and  buildings  he  had 
placed  on  the  premises ;  and  the  lease  provided  that  the  lease 
should  "  be  declared  null  and  void  unless  further  prosecuted 
after  the  first  well  drilled,"  and  that  the  "  time  of  getting  oil  " 
was  of  the  "  essence  of  the  lease,"  it  was  held  that  such  lease 
had  become  void,  where  one  well  had  been  drilled  witliin  tlie 
stipulated  time,  but  thereafter  no  operations  for  mining  pur- 
posses  were  prosecuted  on  the  land  during  several  years/^  The 
fact  that  the  cessure  of  work  or  operations  was  induced  by  the 
inclemency  of  the  weather  is  no  excuse/®  Although  a  well  be 
commenced  on  time,  yet  if  it  be  not  completed  on  time,  the  lease 
will  terminate.®*'  If  a  well  be  drilled  and  oil  found,  though,  the 
lessee  remove  the  casing  and  plug  the  well,  the  well  is  considered 
-completed.®^  If  the  lease  require  work  to  be  commenced  within 
a  certain  time,  and  yet  does  not  provide  when  a  well  shall  be 
completed,  yet  the  lessee  may  not  suspend  work  after  he  has 
commenced  drilling,  but  must  push  the  work  with  ordinary  dili- 
gence until  tlie  well  is  completed,  either  as  a  dry  or  producing 
well.  So,  too,  if  he  is  to  begin  the  development  of  the  leased 
premises  by  a  certain  time,  he  must  prosecute  the  work  in  the 
manner  in  which  tbe  business  is  ordinarily  carried  on  and  with 
ordinary  diligence  until  the  search  for  oil  or  gas  is  ended,  either 
by   finding  it,   and  thereafter  operating  the  premises,   or  by 

Ohio  Cir.  Ct.  Rep.  73;  5  Ohio  C.  D.  so  Cleminger    v.    Baden    Gas    Co., 

394.  159  Pa.  St.  16;  28  Atl.  Rep.  293. 

"7  Cole    V.    Taylor,    8    Pa.    Super.  Time  is  of  the  essence  of  all  con- 

Ct.   Rep.    19;    Crawford   v.    Ritchie,  tracts  relating  to  mining  property. 

43  VV.  Va.  252;   27  S.  E.  Rep.  220.  Waterman  v.  Banks.  144  U.  S.  394; 

T'^Heintz   v.    Shortt.    149    Pa.    St.  12   Sup.   Ct.  Rep.  646;   Island  Coal 

286;   24  Atl.  Rep.  316.  Co.   v.  Combs,   152  Ind.   379;   53  N. 

■^9  Cryan  v.  Ridelspergen,  7  Pa.  Co.  E.  Rep.  452. 

Ct.   Rep.   473;    Steelsmith    v.    Gart-  si  Stahl  v.  Van  Vleck.  53  Ohio  St. 

Ian.  45  W.  Va.  27;  29  S.  E.  978;  44  136;  41  N.  E.  Rep.  35. 
L.  R.  A.  107. 


168  OIL    AND    GAS. 

demonstrating  that  there  is  no  oil  or  gas,  and  surrendering  the 
leased  territory.^'  It  is  more  especially  true  that  the  lessee 
must  proceed  to  develop  the  territory  if,  after  reaching  oil  or 
gas  bearing  rock,  there  be  strong  indications  of  oil  or  gas.®^ 

§142.     Surrender. 

A  surrender  involves  the  yielding  up  of  the  lease  or  the 
premises.  It  implies  an  action  on  the  part  of  the  lessee.  If 
the  lease  does  not  give  the  lessee  the  right  to  surrender  it  or  the 
premises,  then  an  acceptance  of  it  by  the  lessor,  or  at  least  an 
acquiescence  that  implies  an  acceptance,  is  essential  to  complete 
the  act  of  surrender.  But  if  the  lease  gives  the  lessee  the  right 
to  make  the  surrender,  then,  of  course,  acceptance  by  the  lessor 
is  immaterial.^*  If  the  lessee  retain  and  use  the  premises  after 
he  has  delivered  to  the  lessor  a  deed  of  release  and  surrender, 
he  will  be  liable  for  the  rents  and  royalties  he  was  to  pay  under 
the  lease. ^^  Where  the  lessee  has  the  right  under  the  lease  to 
rescind  it  at  any  time,  he  may  surrender  the  premises  by  parol.'*" 
Wliere  a  lessee  ceased  to  work  a  coal  mine,  said  he  would  do 
nothing  more  under  the  lease,  completely  dismantled  the  mine, 

82McNish   V.   Stone,    152   Pa.    St.  under  the  contract.     Paine  v.  Grif- 

457;   23  Pittsb.  L.  J.    (N.  S.)    232;  fiths,  86  Fed.  Rep.  452. 

Ray  V.  Natural  Gas  Co.,  138  Pa.  St.  Cessnre  of  work  for  three  months 

576;  20  Atl.  Rep.  1065;  12  L.  R.  A.  has    been    held    to    be    an    abandon- 

290.  ment.     Kennedy    v.     Crawford     138 

83  Kennedy  v.   Crawford.    138   Pa.  Pa.    St.  561 ;    21   Atl.   Rep.   10.     Sec 

St.   561;   21   Atl.  Rep.   19;   Lowther  Monroe    v.    Armstrong,    9G    Pa.    St. 

Oil  Co.  V.  Miller-Sibley  Oil  Co.   (W.  307;    Steelsmith   v.   Gertlan,  45   W. 

Va.)   44  S.  E.  Rep.  433.  Va.   27;    29  S.   E.   Rep.  978;    44   L. 

Where  a  lease  provided  that  if  the  R.    A.    107;    Huggins   v.    Daley,    99 

Jessee  did  not  "commence  a  test  oil  Fed.  Rep.  606;  48  L.  R.  A.  320. 

or  ffas  well"  at  a  certain  place  "or  ^4  Rarnhart  v.  Lockwood.  152  Pa. 

vicinity    in   ninety  days,   this   lease  St.  82;  25  Atl.  Rep.  237;  McKinney 

to  be  void,"  it  was  held  that  a  test  v.     Reader,     7     Watts     (Pa.)      123; 

well  having  been  completed  on  time  Whitcomb  v.  Hoyt,  30  Pa.  St.  403. 

and  oil  secured,  the  immediate  with-  sr,  Bestwick   v.-  Ormsby   Coal   Co., 

drawing  of  the  casing  and  plugging  129  Pa.  St.  592;  18  Atl.  Rep.  538. 

the  well  did  not  terminate  the  lease.  s"  Hooks    v.    Forst,    165    Pa.    St. 

Stahl  V.  Van  Vleck.  53  Ohio  St.  136;  238;    30  Atl.  Rep.  846;   Cochran  v. 

41  X.  E.  Rep.  35.  Shenango.  etc.,  Co.,  23  Pittsb.  Leg. 

An  abandonment  of  the  lease  in-  J.    (N.  S.)    82. 
eludes  an  abandonment  of  all  rights 


DURATION    OF    LEASE.  169 

moved  off  all  the  mining  apparatus,  and  left  the  mine  in  such  a 
condition  that  it  would  even  become  valueless  by  caving  in,  and 
three  months  afterward  again  entered  on  the  premises  against 
the  protest  of  the  lessor  and  forcibly  attempted  to  sink  a  shaft 
outside  of  the  limits  of  shafts  specified  in  the  lease  —  it  was 
held  that  these  facts  showed  a  surrender  by  mutual  agi^eement.'^^ 
A  surrender  of  the  lease  releases  the  lessee  from  all  liability 
thereafter  (though  not  from  liability  for  past  rents,  or  possibly 
damages)  ;  and  the  surrender  will  be  binding  on  both  lessor  and 
lessee ;  and  also  upon  the  heir.  If  an  heir  accept  the  surrender 
of  the  lease,  it  will  bind  his  co-heirs,  even  though  they  be 
minors,  if  for  their  benefit. ^^  The  assignee  of  a  lease  may  sur- 
render it,  but  the  surrender  will  not  release  him  from  a  liability 
to  the  assignor  assumed  in  the  assignment,  as  a  payment  of  so 
much  for  each  producing  well  drilled.*^  If  the  lessor  only  had 
a  life  estate,  and  at  his  death  the  remainderman  offers  to  con- 
tinue the  lease  on  the  same  terms,  the  lessee  cannot  surrender 
the  lease  before  the  term  for  which  it  was  given  has  expired.^'' 
A  lease  may  be  surrendered  after  suit  brought  to  cancel  it,  by 
way  of  a  compromise ;  and  a  purchaser  of  a  majority  of  the 
stock  of  the  lessee,  (with  knowledge  of  the  compromise,  at 
least)  will  be  bound  thereby. ''^ 

§143.     Surrender  by  substitution  of  tenants  or  assignment  of  lease. 

Without  discussing  whether  a  surrender  must  be  evidenced 
by  a  writing,  that  having  been  discussed  elsewhere,  we  will 
take  up  the  question  in  this  section  of  a  surrender  by  substi- 
tution of  tenants  and  to  instances  of  an  assignment  of  the  lease 


87  Worrall'v.  Wilson,  101  la.  475;  Tex  Civ.  App.  534;   56  S.   W.   Rep. 

70  N.  W.  Rep.  619.  429. 

R8  Wilson    V.    Goldstein,    152    Pa.  In  Heller  v.  Dailey.  28  Ind.  App. 

St.  524;  25  Atl.  Rep.  493.  555;  63  N.  E.  Rep.  490,  a  surrender 

89  Smith  V.  Munhall,  139  Pa.  St.  of  a  grant  by  a  land  owner  to  an- 
253;  21  Atl.  Rep.  735.  other  of  "all  the  oil  and  gas  in  and 

90  Lake  Erie,  etc.,  Co.  v.  Patter-  vmder  "  a  certain  tract  of  land,  and 
son,  184  Pa.  St.  364;  39  Atl.  providing  penalties  for  delay  in  the 
Rep.  68.  drilling    of   the    wells,    it   was    held 

91  Southern  Oil  Co.  v.  Wilson,  22  could  not  be  made  unless  in  writing. 


170  OIL    AND    GAS. 

by  the  lessee  to  third  persons,  the  latter  Tisiially,  if  not  always^ 
being  evidenced  by  a  writing.  And  it  may  be  stated  generally, 
that  if  the  laws  will  imply  a  surrender  in  a  given  instance,  it 
is  reasonably  clear  that  the  implication  will  arise  from  the  acts 
of  the  parties,  and  need  not  be  based  upon  proof  of  an  oral 
agreement  between  the  lessor  and  lessee.  "  The  one,  whether 
lessor  or  lessee,  against  whom  such  a  surrender  is  asserted  by 
the  other,  must  have  been  a  party  to  some  action  from  which  a 
surrender  may  properly  be  presumed  by  the  court.  The  sur- 
render should  be  indicated  by  acts."  ^-  "  If  the  lessee  assign  to 
a  third  person  and  the  lessor  accept  rents  from  the  assig-nee  in 
peaceable  possession,  it  may  be  presumed  from  this  act  of  the 
lessor  in  accepting  the  rent  due  from  his  lessee  through  the  hands 
of  another  in  possession,  that  the  lessor  asquiesces  in  the  assign- 
ment, but  such  conduct  does  not  necessarily  indicate  that  the 
lessor  has  been  a  party  of  the  creation  of  a  new  tenancy.  Such 
facts  may  constitute  evidence  of  an  assignment  but  not  of  a  sur- 
render, and  if  a  surrender  may  be  established  by  the  further 
proof  of  a  parol  agreement  between  the  lessor  and  the  lessee, 
to  which  the  assignee  was  not  a  party,  this  would  be  basing  the 
essential  fact  constituting  the  surrender  upon  parol  evidence  of 
an  express  contract,  and  not  deriving  it  by  act  and  operation 
of  law."  "^  It  therefore  follows  that  a  plea  alleging  that  the 
lessee  entered  into  negotiations  with  a  third  party  named,  and 
notified  the  lessor,  who  encouraged  the  lessee  to  sell  and  assign 
the  lease  to  a  third  party,  and  therefore  the  lessee  duly  assigiied 
and  conveyed  the  lease  to  such  third  party,  who  entered  upon 
the  demised  premises  and  was  duly  accepted  as  his  tenant,  and 
that  the  lessor  collected  rent  from  the  assignee  and  recovered  a 
judgment  for  rent  which  afterwards  fell  due,  is  insufficient,  for 
it  needed  an  averment  that  the  assignee  was  substituted  in  place 
of  the  original  lessee,  with  intent  on  the  part  of  the  parties  to  the 
demise  to  annul  the  obligation  of  the  lease.''*  An  assigniment  of 
the  lease  by  the  lessee  does  not  release  him  from  his  liability  to 

82  Heller  v.  Dailey,  28  Ind.  App.  93  Heller  v.  Dailey.  supra. 

555;  63  N.  E.  Rep.  490:  Parish  Fork  94  Creveling  v.  De  Hart,  54  N.  J. 

Oil  Co.  V.  Bridgewater  Gas  Co.,  51  L.  338;  23  Ail.  Rep.  611. 
VV.  Va.  583;  42  S.  E.  Rep.  655. 


DURATIOX    OF    LEASE.  171 

pay  the  rent  due  under  it,  even  though  the  lessor  collect  rent 
from  the  assignee,  and  these  acts,  of  course,  are  not  equivalent 
to  a  surrender. ^^  "  Xor  did  the  sale  of  the  saloon  by  the  tenant 
to  Ruse,"  in  the  language  of  one  court,  "  nor  the  taking  of  posr 
session  by  Ruse,  nor  the  acceptance  of  rent  from  the  latter  by 
the  landlord,  operate  as  a  discharge  of  the  grantors.  The  as- 
signee of  a  leasehold  estate  is  liable  for  the  rent  according  to 
the  terms  of  the  lease,  and  the  fact  of  his  liability  after  the 
assignment'  does  not  discharge  the  lessee  from  his  covenant  to 
pay  rent.  In  case  the  rent  is  not  paid  by  the  assignee  as  it  be- 
comes due,  an  action  may  be  sustained  against  the  lessee  there- 
for; and  it  makes  no  difference,  in  this  respect,  that  the  lessor 
may  have  received  rent  from  the  assignee,  and  accepted  him  as 
tenant  of  the  premises.''*'  Where  there  is  an  express  covenant 
to  pay  rent  for  a  term  of  years,  the  mere  acceptance  of  rent  by 
the  lessor  from  tlie  assignee  of  the  lessee  does  not  discharge  the 
lessee.®^  The  contract  of  the  latter  continues  in  force,  notwith- 
standing he  may  have  parted  with  his  interest  in  the  estate, 
unless  the  lessor  enters  into  such  stipulations  with  the  assignee 
as  to  accept  him  as  sole  tenant  and  absolve  the  original  lessee. 
If  there  be  not  a  substitution  of  the  assignee  in  place  of  the 
original  lessee,  and  a  clear  intent  to  make  a  new  contract  with 
the  former  to  discharge  the  latter  from  further  liability  under 
the  lease,  both  will  be  held  liable  to  the  lessor."  ^^  In  order  to 
prove  a  surrender,  however,  it  is  not  necessary  to  show  an  ex- 
press contract  between  the  lessor  and  lessee ;  but  it  must  be 
shown  that  the  landlord  by  his  conduct,  as  l^etween  himself  and 
the  assignee,  "  does  not  hold  the  latter  merely  to  the  obligation 
of  an  assignee  of  the  term  in  possession,  but  has  assumed  an 

05  Frank   v.   Magruire,   42   Pa.   St.  Reed,  6  Allen  364;  Hoerdt  v.  Ha  line, 
77;    Sanders  v.   Sbarp,    153   Pa.   St.  91  III.  App.  514;  Detroit  Pharmacal 
555;  25  Atl.  Rep.  524.  Co.  v.   Burt.   124  Mich.  220;    82  N. 
90  Citing    Shaw   v.    Partridge,    17  W.    Rep.    893;    Charles   v.    Froebel, 
Vt.   626.  47  Mo.  App.  45;   Levering  v.  Lang- 
s' Citing  Harris  v.  Heackman,  62  ley,  8  Minn.  107 ;  Lyon  v.  Reed,  13 
la.  411;  17  N.  W.  Rep.  592.  M.  and  W.  285;  Lynch  v.  Lynch,  6 
98Groinmes  v.  St.  Paul  Trust  Co.,  Irish  L.  R.  131;  Lewis  v.  Brooks,  8 
147  HI.  634;  35  N.  E.  Rep.  820;  37  U.  C.  Q.  B.  576. 
Am.  St.  Rep.  248.     See  also  Way  v. 


172  on.     AND    GAS. 

attitude  inconsistent  with  the  continuance  of  the  contract  rela- 
tion between  him  and  the  original  lessee,  and  has  treated  the 
assignee  as  his  own  tenant  by  substitution."  °^.  The  taking  of 
a  new  lease  from  a  third  party,  or  even  from  the  first  lessee, 
and  putting  tlie  new  lessee  in  possession  of  the  premises,  is  a  sur- 
render, and  nothing  farther  is  required  to  make  it  effectual. ^*^** 

§144.     Parol  surrender. 

If  the  written  instrument,  under  which  tlie  lessee  or  grantee, 
or  by  whatever  name  he  is  designated,  grants  or  gives  an  interest 
in  the  land,  then,  as  we  have  seen,  the  surrender  must  be  in  writr 
ing ;  ^°^  but  if  it  be  a  mere  lease,  not  under  seal,  although  writ- 
ten and  not  giving  an  interest  in  the  land,  then  it  may  be  surren- 
dered and  released  by  parol.  ^"" 

§145.     Payment  of  rental  instead  of  developing  premises. 

Ajs  a  general  rule  a  lessee  cannot  prolong  the  life  of  a  lease  by 
the  mere  payment  of  rental,^"^  especially  where  he  has  a  certain 
period  within  which  to  develop  it.  Thus  where  the  lease  was 
for  two  years  "  and  as  much  longer  as  oil  or  gas  is  found  in  pay- 
ing quantities  or  the  rental  paid  thereon,"  and  it  provided  for 
a  rent  of  one-eighth  of  the  oil  and  two  hundred  and  fifty  dollars 
a'  year  for  the  gas,  and  required  one  well  to  be  completed  within 
a  month  or  fifteen  dollars  per  month  to  l>e  paid  in  advance  for 
the  delay  until  one  well  should  be  completed ;  and  it  also  pro- 

99  Heller  v.  Dailey,  supra.  only  for  not  drilling  a  well  within 

100  Coe  V.  Hobby,  72  N.  Y.  141.  a  certain  prescribed  time,  a  lessee's 

101  Heller  v.  Dailey,  28  Ind.  App.  failure  to  give  a  written  notice  of 
555;  63  N.  E.  Rep.  490.  the    termination    of    the    lease    was 

-     102  Donahoe  v.  Rich,  2  Ind.   App.  held  not  to  render  him  liable  for  the 

540;  28  N.  E.  Rop.  1001;   Rhodes  v.  penalty  provided  for  not  drilling  a 

Thomas,  2  Ind.  638 ;   Ward  v.  Wal-  well  within  such  time.     May  v.  Ha- 

ton,  4  Ind.  75;   Knarr  v.  Conaway,  zelwood  Oil   Co.,    152   Pa.    St.    518; 

42   Ind.  260;    Stockton  v.   Stockton,  25  Atl.  Rep.  564. 
40  Ind.  225;   Wood  L.  and  T.,  Sec.  lo 3  Brown  v.  Fowler,  65  Ohio  St. 

402;     Ter.stegge    v.    First    German,  507;   63  N.  E.  Rep.  76;  Gadbury  v. 

etc.,  92  Ind.  82;  Parish  Fork  Oil  Co.  Ohio,  etc.,  Co.   (Ind.),  67  N.  E.  Rep. 

v.  Bridgewater  Gas  Co.,  51  W.  Va.  259;    American   Window    Glass    Co. 

583;  42  S.  E.  Rop.  655.  v.  Williams    (Ind.  App.),   66  N.  E. 

Where    a     ]ion;ilty    was    imposed  Rep.  912. 


DURATION    OF    LEASE.  173 

vided  that  a  failure  to  complete  one  well  or  maJvC  siidi  pay- 
ments for  the  delay  should  render  the  lease  void,  at  the  option 
of  the  lessor,  it  was  held  that  it  did  not  give  the  lessee  a  right 
to  continue  the  lease  by  paying  the  fifteen  dollars  per  month 
after  the  expiration  of  two  years,  after  the  beginning  of  opera- 
tions.^""' Where  a  lease  was  given  for  two  years,  and  if  no 
^vell  w^as  drilled  witliin  twelve  montlis  it  was  to  become  void, 
unless  the  lessee  paid  for  furtlier  delay  at  the  rate  of  one  dollar 
per  acre  at  or  before  the  end  of  the  second  year,  it  w^as  held  tliat 
the  payment  of  one  dollar  per  acre  did  not  extend  the  lease  be- 
yond the  two  years;  and  no  oil  having  been  found  within  two 
years,  tlie  right  to  drill  for  oil  ceased.^**^  But  in  Pennsylvania 
where  a  lease  provided  that  the  lessee  had  ^'  the  option  to  drill 
the  well  or  not,  or  pay  said  rental  or  not,  as  he  may  elect,"  it 
was  held  that  the  lease  did  not  give  the  lessee  the  option  to  pay 
a  periodical  rental,  as  w^as  provided  in  the  lease,  or  drill  a  well 
if  it  so  pleased  him,  but  he  was  bound  to  either  drill  a  well  and 
so  pay  no  rental,  or  pay  the  rental  and  not  be  compelled  to  drill 
the  w^ell.  ''  It  is  not  for  the  lessor,"  said  the  court,  '^  but  it 
is  for  tlie  lessee  to  elect  wdiich  he  wall  do.  This  option  was 
deducible  from  the  stipulations  of  the  lease,  but  the  parties 
chose  to  put  it  in  words  and  m.ake  it  a  part  of  the  contract. 
The  contention  of  the  defendant  destroys  the  character  of  the 
whole  contract.      It  makes  the  lessee  say  that  he  will  drill  a  well 

104  Bettman  v.  Harness,  42  W.  Va.  privilege  of  operating  the  wells  was 
433;  26  S.  E.  Rep.  271;  36  L.  R.  given  so  long  as  they  produced  oil 
A.  566 ;  a  similar  decision  in  Penn-  or  gas  in  paying  quantities.  The 
sylvania  was  rendered;  Western  agreement  further  provided  that  if 
Pennsylvania  Gas  Co.  v.  George,  161  no  gas  well  was  drilled  on  the  prem- 
Pa.  St.  47;  34  W.  N.  C.  332;  28  Atl.  ises  within  five  years  it  should  be 
Rep.  1004.  See  also  Detlor  v.  Hoi-  void,  unless  the  lessee  elected  from 
land,  57  Ohio  St.  492;  49  N.  E.  Rep.  year  to  year  to  continue  it  by  pay- 
690.  ing  $40  each  year  in  advance  until 

105  Brown  v.  Fowler,  65  Ohio  St.  a  well  was  completed  on  the  prem- 
507;  63  N.  E.  Rep.  76.  ises.     It  was  held  that  this   was  a 

Upon    a     sufficient     consideration  grant  of  a  term  for  ten  years,  con- 

the  owner  .of  land  gave  a  lessee  the  ditioned  on  the  payment  of  $40  per 

exclusive  right  for  ten  years  to  en-  year    in   advance    after   the   expira- 

ter  on   such   land  and   prospect  for  tion   of   the   first   five   years?     Mon- 

oil  and  gas;   and  if  oil  or  gas  was  fort  v.  Lanyon  Zinc  Co.    (Kan.)    72 

found     in     paying     quantities,     the  Pac.  Rep.  784. 


174  OIL    AND    GAS. 

witliin  a  given  time,  or,  failing  to  do  so,  that  he  will  pay  a 
monthly  rental,  but  that  he  will  do  neither  unless  it  pleases  him  ; 
and  if  he  does  neitlier  he  shall  be  liable  in  no  manner  for  his 
breach  of  contract.  Such  a  construction  is  so  unjust  and  ab- 
surd that  the  words  relied  upon  as  requiring  it  must  be  plain 
and  unambiguous,  and  must  be  incapable  of  an  exposition  in 
harmony  with  the  body  of  the  contract  before  we  can  consent  to 
adopt  it."  ''^ 

§146.     Recision  for  fraud. 

An  oil  or  gas  lease  may  be  terminated  or  rescinded  for  fraud ; 
but  a  very  strong  case  must  be  made  out  to  secure  a  recision. 
A  representation  that  undeveloped  land  contains  oil  or  gas  is 
regarded  as  a  matter  of  opinion,  and  the  purchaser  is  bound 
so  to  understand  it;  because  of  the  uncertainty  attending  all 
mining  operations  for  gas  or  oil.^"'^  But  if  the  grantor  or  lessor 
actually  knows  that  no  oil  or  gas  lies  beneath  the  surface,  or  if 
he  has  taken  active  steps  to  produce  a  false  impression  derived 
from  an  examination  of  the  premises — (as  in  "salting"  a 
silver  or  gold  mine)  —  then  the  representations  are  more  than 
an  opinion,  and  if  false,  and  they  induce  the  sale  or  acceptance 
of  a  lease,  then  siich  a  fraud  will  authorize  a  recision  of  the 
contract  of  purchase  or  acceptance  of  the  lease. ^"^ 

106  McMillan  v.  Philadelphia  Co.,  Window  Glass  Co.  v.  Williams  (Ind. 

159  Pa.  St.  142;  28  Atl.  Rep.  220.  App.).  66  N.  E.  Rep.  912. 

A  failure  on  the  part  of  the  lessee  iot  Holbrook  v.  Connor,  60  Me. 
lor  two  years  to  develop  the  prem-  578 ;  Gordon  v.  Butler,  105  U.  S. 
ises,  aft&r  drilling  a  well,  finding  553  (a  case  of  stone), 
gas,  and  then  closing  it.  prima  facie  los  Mudsill  Mining  Co.  v.  Wat- 
authorizes  the  lessor,  who  was  to  be  rous,  61  Fed.  Rep.  163;  9  C.  C.  A. 
paid  $100  per  annum  for  each  well  415;  as  to  placing  in  statu  quo,  see 
while  gas  was  being  used  off  the  Reeves  v.  Corning,  51  Fed.  Rep.  74; 
premises,  without  demand,  to  treat  Billings  v.  Alfsen  Mining,  etc.,  Co., 
the  grant  as  abandoned.  Gadbury  51  Fed.  Rep.  338;  Thackarah  v. 
V.  Ohio,  etc.,  Gas  Co.  (Ind.),  67  N.  Haas,  119  U.  S.  499;  7  Sup.  Ct.  Rep. 
E.    Rep.    259.     See    also    American  311;    Gross  v.    Scott.   Mfg.   Co.,  48 

Fed.  Rep.  35. 


CHAPTER  V. 


FORFEITURE  OF   LEASE. 

§147.  Forfeiture  not  a  favorite  of  the  law. 

§148.  Rule  in  gas  or  oil  leases. 

§149.  History  of  change  in  rule  giving  lessor  exclusive  right  to  declare 
a  forfeiture. 

§150.  Forfeiture   favored   by   equity   when   it   will    promote   justice. 

§151.  Lessor  only  can  declare  forfeiture. 

§152.  Heirs  or  assignees  of  lessor  may  declare  forfeiture. —  Assignee. 

§153.  Stranger  cannot  avail  himself  of  forfeiture. 

§154.  Lease  may  be  voidable  at  election  of  lessee  on  his  default,  sur- 
render. 

§155.  Lessee  cannot  insist  on  forfeiture  to  escape  rent. 

§156.  Forfeiture  clause  omitted. 

§157.  Implied  covenants   do   not  authorize   forfeiture. 

§158.  Notice  of  election  to  declare  forfeiture. 

§159.  Waiver  of  forfeiture. 

§160.  Waiver  of  forfeiture  by  accepting  payment. 

§161.  Eviction  of  lessee. 

§162.  Failure  to  operate  and  not  for  failure  to  develop. 

§163.  Continuance  of  operation. 

§164.  Production  of  gas  will  not  prevent  forfeiture  of  an  oil  lease. 

§165.  Covenant  uncertain. 

§166.  Re-entry. 

§167.  Release  of  premises  equivalent  to  a  re-entry. 

§168.  Surrender  after  assignment. —  Forfeiture. 

§169.  Forfeiture  of  only  part  of  lease. 

§170.  Partial  development. —  Abandonment. 

§171.  Lessee  draining  leased  premises  by  wells  on   adjoining  territory. 

§172.  Lessee  draining  away  oil  by  sinking  wells  on  adjoining  premises. 

§173.  Inability  to  complete  work. 

§174.  ]\Iortgage  of  leasehold  may  work  a  forfeiture. 

§175.  When  work  must  be  completed. 

§176.  Excavating  for  oil  means  bringing  it  to  the  surface. 

§177.  Failuie  to  pay  royalties  or  to  report  tliem. 

§178.  Payment  of  rent  will  not  prevent  forfeiture  for  neglect  to  develop. 

§179.  ]\Iust  pay  rent  although  no  oil  on  premises. 

§180.  Lessee  must  pay  past  rents. —  Damages. 

§181.  Lessor  consenting  to  abandonment. 

175 


176  OIL    AND    GAS. 

§182.  Estoppel  of  lessor. 

§183.  Demand  for  compliance  with  lease. 

§184.  Abandonment   a   question   of   intention. 

§185.  Forfeiture  a   question   for  jury. 

§186.  Suit  to  cancel  lease  for  non-development  of  territory. 

§187.  Relief  from  forfeiture. 

§188.  Time  to  avoid  forfeiture. 

§189.  Lessee  cannot  recover  premises  after  forfeiture. 

§190.  Reimbursement  for  expenses. 

§191.  Removal  of  fixtures  and  machinery. 

§192.  Damages  instead  of  declaring  a  forfeiture. 

§147.     Forfeiture  not  a  favorite  of  the  law. 

In  thousands  of  decisions  it  has  been  declared  that  "  for- 
feiture is  not  a  favorite  of  the  law."  ^  "  Conditions  that  work 
forfeitures,"  said  the  Supreme  Court  of  Pennsylvania,  ''  are 
not  favorites  of  the  law ;  and  nothing  less  than  a  clear  expression 
of  intention  that  a  provision  shall  he  such  will  make  it  a  con- 
dition upon  which  the  conti.-*<ancc  of  an  estate  granted  de- 
pends." " 

§148.     Rule  in  gas  or  oil  leases. 

Forfeitures,  however,  on  the  part  of  the  lessee  in  a  gas  or  oil 
lease,  which  arise  by  reason  of  his  neglect  to  develop  or  operate 
the  leased  premises,  are  rather  favored  by  tlie  law,  because  (  f 
the  peculiar  character  of  the  product  to  be  produced.^  The  re?.- 
sons  for  this  have  been  well  stated  in  a  Pennsylvania  case  as 
follows : 

"  The  discovery  of  petroleum  led  to  new  forms  of  leasing 
land.      Its  fugitive  and  wandering  existence  within  the  limits  of 

1  Lauman  v.  Young,  ,31  Pa.  St.  than  to  the  lessee,  see  Edwards  v. 
,306.  Tola   Gas  Co.,   65  Kan.  — ;    69  Pac. 

2  IMcKnight  v.  Kreutz,  51  Pa.  St.  Rep.  .350;  and  Gadbury  v.  Ohio,  etc., 
2,32;  Westmoreland,  etc.,  Gas  Co.  v.  Gas  Co.  (Ind.),  67  N.  E.  Rep.  2.59: 
DeWitt,  130  Pa.  St.  2,35;  18  Atl.  American  Window  Glass  Co.  v.  WM- 
Rep.  724;  29  Am.  L.  Reg.  9.3;  Hen-  Hams  (Ind.  App.),  66  N.  E.  Rep. 
derson  v.  Coal  and  Coke  Co.,  140  U.  912;  Coffinberry  v.  Sun  Oil  Co. 
S.  25;   11  Sup.  Ct.  Rep.  691.  (Oliio)    67   N.   E.    Rop.    1069;    Low- 

■■*  That  a  gas  or  oil  lease  is  con-  ther  Oil  Co.  v  Miller-Sibley  Oil  Co. 
strued  more  favorably  to  the  lessor        (W.  Va.)   44  S.  W.  Rep.  433. 

/ 


FOKFEITURE    OF    LEASE.  177 

a  particular  tract  was  uncertain,  and  assumed  certainty  only  by 
actual  development  founded  upon  experiment.  The  surface  re- 
quired was  often  small  compared  with  the  results  when  attended 
with  success;  whilst  these  results  led  to  a  great  speculation  by 
means  of  leases  covering  the  lands  of  a  neighborhood  like  a 
flight  of  locusts.  Hence  it  was  found  necessary  to  guard  the 
rights  of  the  land  owner,  as  well  as  public  interest,  by  numer- 
ous covenants,  some  of  the  most  stringent  hind,  to  prevent  tlieir 
lands  from  being  burdened  by  unexecuted  and  profitless  leases 
incompatible  with  the  right  of  alienation  and  the  use  of  the  land. 
Without  these  guards,  lands  would  be  thatched  over  with  oil 
leases  by  subletting,  and  a  farm  riddled  with  holes  and  bristled 
with  derricks,  or  operations  would  be  delayed  so  long  as  the 
speculator  would  find  it  hopeful  or  convenient  to  himself  alone. 
Hence  covenants  become  necessary  to  regiilate  the  boring  of 
wells,  their  number,  tlie  time  of  succession,  the  period  of  com- 
mencement and  of  completion,  and  many  other  matters  requir- 
ing special  regulation.  Prominent  among  these  was  the  clause 
of  forfeiture  to  compel  |>erformance,  and  put  an  end  to  the  lease 
in  case  of  injurious  delay  or  a  want  of  success.  These  leases 
were  not  valuable  except  by  means  of  development,  unlike  tlie 
ordinary  tenns  for  the  cultivation  of  the  soil  or  for  the  removal 
of  fixed  minerals.  A  forfeiture  for  non-development  or  delay 
therefore  cut  off  no  valuable  rights  of  property,  while  it  was 
essential  for  the  protection  of  private  public  interest  in  relation 
to  the  use  and  the  alienation  of  property.  In  the  present  case 
the  lease  was  modified  by  adding  immediately  after  the  clause 
of  forfeiture  a  stipulation  that,  should  the  lessee  not  commence 
operation  at  a  time  specified,  he  should  pay  to  the  landlord 
thirty  dollars  for  each  and  every  month  until  such  time  as 
drilling  should  be  commenced.  The  lessee,  having  paid  for 
three  months'  delay,  suffered  eleven  months  to  elapse  without 
payment  or  tender,  and  then  tendered  the  whole  sum,  Avhicli 
the  landlord  declined  to  accept,  and  insisted  on  the  forfeiture, 
he  in  meantime  having  made  a  new  lease  to  a  party  who  went 
into  possession.  The  learned  judge  below  held  that  the  lease 
was  forfeited  by  the  omission  to  pay  the  monthly  sums,  the 
lessee  having  done  nothing  in   performance  of  his  covenants. 


ITS  •  OIL    AND    GAS. 

AVe  cannot  pronounce  this  to  be  an  error,  in  view  of  the  nature 
of  the  lease,  the  true  intention  of  the  clause  of  forfeiture,  and 
the  want  of  any  valuable  interest  acquired  by  the  lessee,  by  per- 
formance. That  time  may  be  made  of  the  essence  of  the  con- 
tract by  the  express  agreement  of  the  parties  has  been  so  often 
decided  that  no  citation  of  authority  is  necessary.  In  a  case 
like  this  equity  follows  the  law,  and  will  enforce  the  covenant 
of  forfeiture,  as  essential  to  do  justice.  It  is  true  as  a  general 
statement  that  equity  abhors  a  forfeiture ;  but  this  is  when  it 
works  a  loss  that  is  contrary  to  equity,  not  when  it  works  equity, 
and  protects  the  land  owner  against  the  indifference  and  laches 
of  the  lessee,  and  prevents  a  great  mischief,  as  in  the  case  of 
such  lessees.  To  perpetuate  an  oil  lease  forever  by  the  pay- 
ment of  a  monthly  sum,  as  here,  at  the  will  or  caprice  of  the  les- 
see, would  work  great  injustice.  The  covenant  of  forfeiture 
was  not  abrogated  entirely,  but  only  modified."  *  Iii  a  subse- 
quent case  the  same  court  used  the  following  language : 

"'  The  agreement  is  plain  that  if  the  lessees  failed  to  get  oil 
in  one  well,  they  had  a  right  to  put  down  another,  and  as  many 
more  as  they  pleased,  so  long  as  they  worked  with  diligence  to 
success  or  abandonment,  and  equally  plain  that  a  cessation  of 
tliirty  days  would  end  their  lease.  They  were  not  bound  to  do 
more  than  make  a  reasonable  search  for  oil,  but  they  were  bound 
to  operate  or  quit;  they  could  not  hold  on  and  be  idle.  The 
contract  did  not  require  them  to  keep  on  drilling  oil  wells  in- 
definitely and  without  cessation,  for  twenty  years,  nor  for  any 
indefinite  length  of  time;  neither  did  it  entitle  them,  after  the 
drilling  of  tlie  well,  to  hold  the  lease  for  twenty  years  without 
working  it.  Even  at  the  beginning  of  the  lease,  the  duration 
qI  the  term  was  qualified  by  the  words,  '  unless  forfeited.'  The 
question  seems  to  be,  shall  the  concise  and  clear  expression  ol 
the  agreement  of  these  parties,  as  written,  give  way  to  imaginary 
terms  more  favorable  to  the  lessees?  What  is  there  in  the 
circumstances  calling  for  a  fictiou  to  defeat  the  covenant  again^^t 
delay  in  searching  for  or  producing  oil  ?  .  .  .  If  a  well  be 
productive,  it  is  the  interest  of  both  lessor  and  lessee  that  it  be 

4  Brown  v.  Vandergrift,  80  Pa.  St.  142. 


FORFEITUKE    OF     I-EASE. 


179 


'Continuously  operated  till  its  exliaiistion,  but,  if  dry,  it  is  of 
no  value.  Holding  on  to  a  lease  after  ceasing  search  is  often 
for  purposes  of  speculation,  the  thing  which  a  prudent  land 
•ovmer  guards  against.  Forfeiture  for  non-development  or 
•delay,  is  essential  to  j^rivate  and  public  interests  in  relation  to 
the  use  and  alienation  of  property.  In  such  cases  as  this  equity 
follows  the  law. 

"  In  the  rapid  development  and  exhaustion  of  oil  lands,  cessa- 
tion of  work  for  nine  months  is  a  long  period.  Often  in  far 
less  time  the  fluctuation  in  prices  of  land  and  leaseholds  is  very 
gi'eat.  Perhaps  in  no  other  business  is  prompt  performance  of 
contracts  so  essential  to  the  rights  of  the  parties,  or  delay  by 
-one  party  likely  to  prove  so  injurious  to  the  other."  ^ 

§149.     History  of  change  in  rule  giving  lessor  exclusive  right  to 
declare  a  forfeiture. 

*'  A  distinction  formerly  pTcvailed  between  a  proviso  declar- 
ing that  the  lease  should  be  void  on  a  specified  event,  and  a  pro- 
viso enabling  the  lessor  to  determine  it  by  re-entry.  It  was 
Tield  that  in  the  former  case  the  lease  became  absolutely  void  on 
the  event  named,  and  was  incapable  of  being  restored  by  ac- 
ceptance of  rent  or  other  act  of  intended  confirmation ;  whilst 
in  the  latter  some  act,  such  as  entry  or  claim,  must  have  been 
performed  by  the  lessor  to  manifest  his  intention  to  end  the 
demise,  which  was  voidable  in  the  interval  and  consequently 
confirmable.  The  force  of  this  distinction,  it  is  said,  in  Tay- 
lor on  Landlord  and  Tenant,^  has  been  almost,  if  not  quite, 
abated  by  the  modern  decisions,  which  establish  that  the  effect 
■of  a  condition  making  a  lease  void  upon  a  certain  event,  is  to 
make  it  void  at  the  option  of  the  lessor  only,  in  cases  where 
the  condition  is  intended  for  his  benefit,  and  he  actually  avails 
liimself  of  this  privilege.*"  But  it  is  entirely  optional  with 
the  lessor  whether  he  will  avail  himself  of  his  right  or  not, 
although  by  the  terms  of  the  proviso  the  term  is  to  cease  or 
l)ecome  void  for  the  non-performance  of  the  covenant;  and  if 

5  Munroe  v.  Armstrong,  96  Pa.  St.  «  Seo.  492. 

307.  *«  2  Piatt  on  Leases,  327. 


180  OIL    AND    GAS. 

the  lessor  does  not  avail  himself  of  it  the  term  will  continue, 
for  the  lessee  cannot  elect  that  it  shall  cease  or  be  void.  Wliere 
there  is  a  proviso  in  a  lease  that  on  non-paymejit  of  rent  the 
term  shall  cease,  the  lessor  and  not  the  lessee  has  the  option  of 
determining  the  lease  upon  a  breach  made."  The  English  law 
in  this  respect  had  been  generally  followed  in  tliis  country,  and 
such  a  lease  is  held  to  be  good  nntil  avoided ;  thongh  the  lessee 
is  estopped  to  set  it  up  against  the  lessor.  A  lessee  cannot  avail 
himself  of  his  own  act  to  vacate  a  lease,  on  the  principle  tJiat 
no  man  shall  be  permitted  to  take  advantage  of  his  own  wrong.^ 
So  Mr.  Parsons,  in  his  Law  of  Contracts,®  referring  to  the  dis- 
tinction formerly  recognized  between  the  effect  of  a  proviso  de- 
claring that  the  lease  shall  be  void  in  a  s^Decified  event,  and  a 
proviso  enabling  the  lessor  to  determine  it  by  re-entry,  says : 
'  This  distinction  is  now"  exploded,  and  it  is  held  that  the  lease 
is  voidable  only  at  the  election  of  the  lessor,  but  not  of  the  les- 
see, though  the  proviso  expressly  declare  that  it  shall  be  void.' 
In  Pennsylvania  the  older  doctrine  would  seem  at  first  to  have 
been  adhered  to,  that  in  a  lease  for  years  with  condition,  if  the 
condition  be  broken  by  the  lessee,  his  interest  was  ipso  facto  void 
by  the  breach,  and  no  subsequent  recognition  of  the  tenancy 
could  set  it  up.^**  In  the  case  cited  there  was  a  lease  of  land 
upon  condition  that  the  rent  should  be  paid  upon  certain  speci- 
fied dates,  and  if  a  certain  default  was  made  for  three  months, 
neglect  to  pay  after  ten  days'  notice  should  render  the  lease  null 
and  void.  The  default  occurred  and  notice  was  given,  and  it 
was  held  that  after  ten  days  the  lease  was  ipso  facto  void,  with- 
out re-entry,  and  could  not  afterwards  be  affirmed  or  continued. 
In  Sheaffer  v.  Sheaffer  ^^  the  doctrine  announced  by  Justice 
Sergeant,  in  Kenrick  v.  Smick,  supra,  was  adhered  to ;  and 
English  cases  were  brought  into  contrast  with  the  doctrine  of 
Kenrick  v. Smick,  and  it  is  admitted  that  the  rule  of  the  English 
courts  is  followed  in  most  of  the  States  of  the  Union.  In 
Davis  v.  Moss,^^  the  rule  of  the  previous  cases  is  again  appa- 

"  Rcid  V.  Parsons,  2  Chit.  247.  lo  Kenrick    v.    Smick,    7    W.    and 

R  Wood's    Landlord    and    Tenant,  S.  41. 

1204.  Ji  .37  Pa.  525. 

n  Vol.  I.,  p.  507.  12  38   Pa.   346. 


1  81 

FORFEITURE    OF    LEASE. 

rently  recog-nized,  but  its  rigor  is  relaxed  in  this,  that  the  for- 
feiture is  said  to  depend  upon  the  tenns  of  the  instrument, 
'  unless  there  be  evidence  to  effect  the  landlord  with  a  yaiver 
of  the  breach,  like  the  receipt  of  rent  or  other  equally  un- 
equivocal act.'     The  distinction  bet^veen  the  Pennsylvania  cases 
referred  to  and  the  weight  of  authority  elsewhere,  therefore 
would  seem  to  be  that  by  the  former  the  lease,  upon  breach  ol 
the  condition,  is  ipso  facto  void,  unless  by  son.e  unequivocal  act 
of  the  lessor  it  is  waived,  whilst  by  the  latter  it  is  void  li  the 
lessor  elects  by  some  positive  act  to  take  advantage  ot  it.      We 
do  not  understand  that  in  either  case  a  re-entry  is  required  to 
complete  the  forfeiting.     This  almost  amounts  to  a  distinction 
without  a  difference.     In  practice,  the  prima  facics  being  dif- 
ferent   it  merelv  shifts  the  burden  of  proof  from  one  party  to 
the  other.     It  will  be  observed  moreover,  that  the  Pennsylvania 
cases  already  referred  to  are  all  cases  in  which  the  forfeiture 
was  set  up  by  the  lessor  upon  the  default  of  the  lessee;  m  none 
of  them  did  the  lessee  set  up  his  own  default  as  a  cause  ol  for- 
feiture     No  case  has  been  called  to  our  attention,  m  this  or 
any  other  State,  in  England  or  elsewhere,  which  recognizes  the 
doctrine  that  a  party  may  take  advantage  of  his  own  wrong,  or 
set  up  his  own  default  to  work  a  forfeiture  of  his  own  contract 
Persons  may,  of  course,  contract  in  this  form  and  to  this  effect 
if  they  choose,  but  we  do  not  understand  the  parties  to  this 
contract  to  have  so  intended.     But  the  rigid  rule  of  Kenrick  v. 
Smick  is  further  relaxed  in  the  very  recent  case  of  Galey  v. 
Kellerman."     Thus   it  appears  that  the   distinction   formerly 
maintained  between  the  rulings  of  the  English  courts  and  of  the 
courts  of  our  sister  States,  and  the  rulings  in  Pennsylvanui    is 
no  longer  found  to  exist.     We  have  by  slow  approaches  at  last 
apparentlv  turned  into  the  general  current  of  cases,  m  which 
is  found,  without  doubt,  the  great  weight  of  authority,  both  m 
England  and  in  this  country."  ^* 

as  123  Pa.  491 ;   16  Atl.  Eep.  474.       All.  Rep.  721 ;  5  L  R.  A.  603. 
X.Wills    V.    Manufacturers'    Nat-  For  Pennsylvania  cases,  see  pre- 

ural  Gas  Co.,   130  Pa.   St.  222;    18       ceding  section. 


182  OIL    AND    GAS. 

§150.     Forfeiture  favored  by  equity  when  it  will  promote  justice. 

A  forfeiliu-e  is  not  always  abhorred  by  the  law,  nor  by  eqnity, 
if  its  enforcement  will  promote  jnstice.  Sj^eaking  of  one  in- 
stance it  was  said  by  an  appellate  court:  "  In  a  case  like 
this  eqnity  follows  the  law,  and  will  enforce  the  covenant  of 
forfeiture,  as  essential  to  do  jnstice.  It  is  true  as  a  general  state- 
ment that  eqnity  abhors  a  forfeiture ;  but  this  is  when  it  works 
a  loss  that  is  contrary  to  equity,  not  when  it  works  eqnity,  and 
protects  the  land  owner  against  the  indifference  and  laches  of 
the  lessee,  and  prevents  a  great  mischief,  as  in  the  case  of  such 
lessees."  '°  The  courts  have  gone  so  far  as  to  allow  a  specified 
time  within  which  to  complete  a  well,  and  if  not  done  within 
that  time,  the  lease  would  be  declared  forfeited. ^° 

§151.     Lessor  only  can  declare  forfeiture. 

A  lessee  cannot  set  up  his  own  default,  in  order  to  terminate 
the  lease  or  escape  liability  under  its  provisions.  If  he  make 
default,  not  keeping  the  covenants  of  the  lease,  it  is  with  the 
lessor  to  declare  a  forfeiture,  or  that  it  shall  no  longer  be  in 
force.  If  a  mining  lease  provide  that  if  the  mine  should  not 
be  worked  the  lease  should  be  void,  the  w^ord  "  void  "  means 
"  voidable  "  at  the  election  of  the  lessor;  and  it  will  be  neces- 
sary for  him  to  do  some  act  evincing  an  intention  to  avoid  it 
before  it  can  be  considered  avoided  or  terminated. ^^  This  is 
true  even  though  a  clause  provides  that  a  failure  to  do  the 
thing  covenanted  to  do  "  shall  render  this  lease  null  and  void, 

15  Brown  v.  Vandergrift,  80  Pa.  Co.  (W.  Va.),  43  S.  E.  Rep.  147; 
St.  142;  Munroe  v.  Armstrong,  96  Gadbury  v.  Ohio,  etc.,  Gas  Co. 
Pa.  St.  307;  Parish  Fork  Oil  Co.  v.  (Ind.),  67  N.  E.  Rep.  259. 
J^ridgewater  Gas  Co.,  51  W.  Va.  it  Roberts  v.  Davey,  4  Barn,  and 
585;  42  S.  E.  Rep.  655;  Barnsdali  Ad.  664;  1  Nev.  and  M.  443;  Bryan 
V.  Boley,  119  Fed.  Rep.  191.  v.   Bancks,   4   Barn,   and   Aid.   401; 

16  Young  V.  Vandergrift,  30  Bettman  v.  Harness,  42  W.  Va.  433 ; 
Pittsb.  L.  J.  (N.  S.)  39.  Reversed  26  S.  E.  Rep.  271;  36  L.  R.  A.  566; 
in  Young  v.  Forest  Oil  Co.,  194  Pa.  Westmoreland,  etc..  Gas  Co.  v.  De- 
St.  248;  30  Pittsb.  L.  J.  (N.  S.)  Witt,  130  Pa.  St.  235;  18  Atl.  Rep. 
221;  45  Atl.  Rep.  121.  See  Ohio  724;  5  L.  R.  A.  731;  Smith  v.  Mil- 
Oil  Co.  V.  Hurlbut,  7  Ohio  Dec.  321;  ler,  49  N.  J.  L.  521;  13  Atl.  Rep. 
14  Ohio  C.  C.  144,  reversini  6  Ohio  39;  Henne  v.  South  Penn.  Oil  Co., 
Dec.  305;  Henne  v.  South  Ponn.  Ol  52  W.  Va.  — ;  43  S.  E.  Rep.  147. 


FORFEITURE    OF    LEASE. 


183 


toocthev  witli  all  rights  and  claims,  ami  not  binding  on  either 
Jrty  and  not  to  he  revived  without  the  consent  of  both  partK-s 
Lreto  in  writing."  "  Snch  provisions  of  forfe>.«rc, '  said  the 
court  "  are  for  the  benefit  of  the  lessor,  and  not  for  the  benefit 
of  the  lessee.  The  lessee  cannot  plead  his  own  default  or  wrong 
in  discharge  of  his  obligation  to  drill  or  pay  rental.  He 

lessor  has  the  option  to  discontinue  the  lease,  on  default  of  the 
lessee,  or  affirm  the  continuance  of  the  contract.  Where  a 
lease  provided  that  the  lessee's  failure  to  complete  a  well  within 
a  certain  period,  or,  in  default  thereof,  '"^^  .IT^'TITJl 
rental,  slionld  render  the  lease  "null  and  void,"  and  that  all 
rights  and  claims  should  therefrom  cease,  "  with  like  effect  as 
if'this  agreement  had  never  been  made,"  it  was  held  that  the 
lessee,  by  his  own  default,  could  not  relieve  himself  from  lia- 
bility already  incurred.-  In  the  instances  just  given  parol 
evidence  is  not  admissible  to  show  the  uniform  construction  of 
similar  clauses  by  parties  to  such  leases."     Some  of  the  courts 

Rep.  721;  5  L.  R.  A.  602;  Ogden  v. 
Hatry,  145  Pa.  St.  640 ;  23  Atl.  Rep. 
334;"  Phillip.-^  V.  Vaiideigrift,  146 
Pa.  St.  357;  23  Atl.  Rep.  347; 
Leatherman  v.  Oliver,  151  Pa.  St. 
646;  31  W.  N.  C.  205;  25  Atl.  Rep. 
309-  Agerter  v.  Vandergrift,  138 
Pa.  St.  576;  27  W.  N.  C.  230;  21 
Atl.  Kep.  202. 

20  Ogden  v.  Hatry,  supra;  Shet- 
tler   V.   Hartman.    1    Pennyp.    (Pa.) 

279. 

21  Jones  V.  Western,  etc.,  Gas  Co.. 
146  Pa.  St.  204;  29  W.  N.  C.  266; 
23  Atl.  Rep.  386. 

Where  a  clause  in  a  lease  reads 
"  and  no  right  of  action  shall  after 
such  failure  accrue  to  either  party 
on  account  of  the  breach  of  any 
promise  or  agreement  herein  con- 
tained." it  was  held  that  the  words 
"  after  such  failure  "  referred  to  tlie 
continued  failure  to  make  the  pay- 
ment after  it  bocnme  due.  and  that 
the  riffht  of  action  to  recover  it  wns 
not  affected.    Leatlierman  v.  Oiivr. 


18  Woodland  Oil  Co.  v.  Crawford, 
55  Onio  St.  161;  36  Ohio  L.  Bull. 
231;  44  N.  E.  Rep.  1093;  34  L.  R- 
A.  62;  Thomas  v.  Hukill,  34  W.  Va. 
385;  12  S.  E.  Rep.  522;  Jones  v. 
Western,  etc..  Gas  Co.,  146  Pa.  St. 
204;  23  Atl.  Rep.  386;  29  W.  N.  C. 
266;  Galey  v.  Kellerman,  123  Pa. 
St.  491 ;  16  Atl.  Rep.  474 ;  Ray  v. 
Western,  etc.,  Gas  Co..   138  Pa.  St. 

r,76;    20   Atl.   Rep.    106^;    12   L.   R. 

\    990-    Springer   v.   Citizens',  etc., 

Gas^Co'.,    145   Pa.   St.   430;    22   Atl. 

Rep.  986;   Cochran  v.  Pew,  159  Pa. 

St    184;  28  Atl.  Rep.  219;  Smiley  v. 

Western,  etc.,  Gas  Co.,  27  W.  N.  C 

238;   Liggett  v.   Shira,   159  Pa.  St. 

350 ';  33"w.  N.  C.  553;  25  Atl.  Rep. 

218;  :Mathews  v.  People's,  etc.,  Gas 

Co  '  179  Pa.   St.   165;   39  W.  N.  C. 

.^44;    27  Pittsb.  L.  J.    (N.  S.)    421; 

30  '\tl.  Rep.  216;  Harris  v.  Ohio 
Coal  Co.,  57  Ohio  St.  118  •.  48  N.  E. 
Rep.  502. 

m  Wills    V.    Manufacturers',    etc., 
Gas   Co.,   130   Pa.   St.  222;    18   Atl. 


184  OIL    AND    GAS. 

have  gone  a  long  ways  in  upholding  the  rule  that  only  the  lessor 
can  take  advantage  of  the  lessee's  default.  Thus  where  a  lease 
provided  that  a  lease  must  be  completed  within  three  montlis, 
and  in  case  of  a  failure  to  do  so,  to  pay  a  rental  of  $25  a 
month,  until  the  completion  of  one  well ;  and  then  expressly 
provided  that  "  a  failure  to  complete  such  a  well  or  to  comply 
with  any  of  the  foregoing  conditions,  or  to  make  any  such  pay- 
ments within  such  time  and  at  such  place  as  above  mentioned, 
renders  this  lease  absolutely  null  and  void,  and  no^  longer  bind- 
ing on  either  party,  and  will  reinvest  the  estate  herein  granted 
in  the  lessor,  and  release  the  lessee  from  all  his  covenants  herein 
contained,  he  having  the  option  to  drill  said  well  or  not,  or  pay 
said  rental  or  not  as  he  may  elect "  ;  this  clause  was  considered 
not  to  give  the  lessee  a  right  to  avoid  the  lease ;  and  he  not 
having  drilled  a  well  could  not  set  up  a  forfeiture  to  avoid  pay- 
ing rent.'"  In  discussing  a  case  of  this  kind  the  Supreme  Court 
of  Pennsylvania  used  the  following  language: 

"  Whilst  the  obligation  on  the  part  of  the  lessee  to  operate  is 
not  expressed  in  so  many  words,  it  arises  by  necessary  implica- 
tion. .  .  .  If  a  farm  is  leased  for  farming  purposes,  the 
lessee  to  deliver  to  the  lessor  a  share  of  the  crops,  in  the  nature 
of  rent,  it  would  be  absurd  to  say,  because  there  was  no  express 

151   Pev.   St.  646;   25  Atl.  Rep.  309;  guage   used,    and   a   like   result   was 

31    W.    N.    C.    205;    Conger    v.    Na-  reached  by  the  court, 

tional,   etc.,    Co.,    165   Pa.    St.   561;  A    lease    for    five    years   provided 

31  Atl.  Rep.  1038;  Sanders  V.  Sharp,  that    a    well    should    be    completed 

153  Pa.  St.  555;   25  Atl.  Rep.  524.  within  a  year,  or  the  lessee  pay  an 

The    lessee    cannot    insist    that    the  annual   rental   until   he   did   so.     If 

lessor   exercise   his   right   of   option  the  lessee  failed  to  make  any  of  the 

in  order  that  he,  the  lessee,  be  re-  payments  within  ten  days  after  the 

leased  from  his  covenant.     Leather-  time   specified,   the  lease   should   be 

man-^.  Oliver,   151  Pa.  St.  646;  25  void,   and  neither  lessor  nor  lessee, 

Atl.  Rep.  309.  after    such    failure,    should    have    a 

22  McMillan    v.    Philadelphia    Co.,  right    of    action    by    reason    of    the 

159  Pa.   St.   142;   28   Atl.  Rep.  220.  breach.    It  was  held  that  the  failure 

See   also  Mathews  v.   People's  Nat-  of  the  lessee  to  make  such  payments 

ural   Gas  Co.,   179  Pa.   St.   165;    36  did  not  relieve  :  im  of  liability  for 

Atl.  Rep.  21C;  and  Bartlev  v.  Phil-  the  rent,  nor  prevent  the  lessor  from 

lips,   179  Pa.  St.   175;   36  Atl.  Rep.  maintaining  an  action  for  it.     Con- 

217.     Tlie  lease  in  Cochran  v.  Pew,  ger   v.    National,   etc.,   Co.,    165   Pa. 

159  Pa.  St.   184;   28  Atl.  Rep.  219;  St.   561;   30  Atl.  Rep.   1038. 
was    almost   as   strong   in   the   Ian- 


rORFEITUKE    OF    LEASE.  185 

engagement  to  farm,  that  the  lessee  was  under  no  obligation  to 
cultivate  the  land ;  an  engagement  to  farm  in  a  proper  manner, 
and  to  a  reasonable  extent,  is  necessarily  implied.  The  clear 
purpose  of  the  parties  to  this  lease  was  to  have  the  lands  de- 
veloped, and  the  half-yearly  payments,  and  the  other  sums  stip- 
ulated, were  intended  not  only  to  spur  the  operator,  but  to  com- 
pensate Kay  for  tlie  operator's  delay  or  default.  The  lessor's 
hands  have  been  tied  for  two  years.  We  do  not  know  that  ho 
lost  anything  in  royalties,  or  that  he  suffered  by  drainage,  for 
the  territory  might  have  proved  unproductive ;  but,  as  the  trans- 
action was  founded  in  the  hope  that  either  gas  or  oil,  or  both, 
might  be  found  in  paying  quantities,  it  was  competent  for  the 
parties  to  contract  in  advance  for  the  amount  of  compensation 
to  which,  in  the  event  of  delay  or  default  in  develop'ment,  the 
lessor  would  be  entitled.  The  provision  for  forfeiture  was 
doubtless  inserted  in  anticipation  that  the  lessee  might  make 
default  and  become  unable  to  pay,  in  which  event  he  might  put 
an  end  to  the  lessee's  pretensions  and  seek  other  means  of  devel- 
opment. This  clause  having  been  inserted  as  a  protection  to 
the  lessor,  he  had  the  right  either  to  declare  the  forfeiture  or  to 
affirm  the  continuance  of  the  contract;  and,  if  the  lessor  did 
not  choose  to  avail  himself  of  the  forfeiture,  the  lessee  cannot 
set  it  up  as  a  defense  to  an  action  in  affirmance  of  the  con- 
tract." -^ 

§152.     Heirs    or   assignees    of   lessor   may   declare    forfeiture, — 
assignee. 

The  lessor  or  his  heirs  may  declare  a  forfeiture  and  make  a 
re-entry."*  So  the  devisee  may  declare  a  forfeiture  and  re^ 
enter. "^  So  may  the  lessor's  assignees."''  ^Miere  one,  who  was 
of  age,  of  several  children,  all  minors  but  he,  and  heirs  of  a 

2^  Ray    V.    Natural    Gas    Co..    138  25  Hayden    v.    Stoughton,    5    Pick. 

Pa.  St.  576;   20  Atl.  Rep.   1065;    12  528;    Austin    v.    Cambridgeport,    21 

L.  R.  A.  290.  Pick.  215. 

24  Island  Coal  Co.  v.  Combs,   152  20  Island   Coal  Co.  v.  Combs,   152 

Ind.  379;    53  X.  E.  Rep.  4.52;    \^  il-  Ind.  379;  53  X.  E.  Rep.  452. 
son  V.  Goldstein,  152  Pa.  St.  524;  25 
Atl.  Rep.  493. 


186  OIL    AND    GAS. 

deceased  lessor,  acting  on  behalf  of  all  declared  a  forfeiture, 
the  court  said  it  would  permit  a  repudiation  of  the  declaration 
of  a  forfeiture,  unless  it  be  shown  that  it  was  for  the  benefit  of 
such  minors  to  enforce  it  rather  than  keep  the  lease  alive.'^ 
And  where  the  lessors  were  an  adult  and  also  a  guardian  of  a 
minor,  the  latter  alone  was  not  permitted  to  declare  a  for- 
feiture.^^ These  two  last  cases  cover  the  statement  that  if 
there  be  several  lessors,  as  joint  or  tenants  in  common  of  the 
same  tract,  a  forfeiture  cannot  be  declared  and  enforced,  unless 
all  join  in.  the  declaration.  Where  a  conditional  fee  is  con- 
veyed, only  the  grantor  or  his  heirs  can  take  advantage  of  a 
breach  of  the  condition,  not  even  the  assignee  of  the  grantor  can. 
do  so.-^ 

§153.     Stranger  cannot  avail  himself  of  forfeiture. 

As  only  the  lessor  can  avail  himself  of  the  right  to  declare  a 
forfeiture,  a  mere  stranger  cannot  set  up,  in  order  to  defeat  him 
in  his  rights,  that  the  lessee  has  forfeited  his  right  to  the  lease, 
so  long  as  the  lessor  has  not  entered  for  or  declared  a  forfeiture. 
Thus  in  an  action  of  ejectment  brought  by  the  lessee  of  a  lease 
against  a  mere  squatter,  where  such  lessee  had  established  a 
prima  facie  case,  it  was  held  that  the  squatter  could  not  avail 
himself  of  the  lessee's  want  of  diligence  in  prosecuting  the 
work,  as  required  by  the  lease,  and  insist  that  the  premises  had 
been  abandoned.^" 

§154.     Lease  may  be  voidable  at  election   of  lessee  on  his  de- 
fault. 

A  lease  may,  however,  be  so  drawn  that  a  lessee  may  take  ad- 
vantage of  his  own  default.  "  Parties  may  agree  that,"  said 
the  Supreme  Court  of  Ohio,  "  in  case  of  failure  to  drill,  or  fail- 
ure to  pay,  or  both,  the  lessee  shall  be  relieved  of  his  obligation 

27  Wilson  V.  Goldstein,  supra.  so  Hartley  v.  Phillips,  165  Pa.  St. 

2s  Springer  v.  Citizens'  Gas  Co.,  325;  36  W.  N.  C.  19;  30  Atl.  Rep. 
145  Pa.  St.  430;  22  Atl.  Rep.  986.  842. 

29  Upington  v.  Corringan,  151  N. 
Y.  143;  45  N.  E.  Rep.  359. 


FORFEITURE    OF    I.EASE.  187 

upon  such  terms  as  the  parties  may  agree  upon  in  the  lease,, 
whether  the  terms  be  of  value  to  the  lessor  or  inconvenience  to  the 
lessee ;  but  a  naked  default  and  non-perfonuance,  as  in  this  lease, 
cannot  be  held  to  discharge  the  obligation  of  the  lessee."  *^"  If 
the  lessee  may  take  advantage  of  his  own  default,  he  must  sur- 
render the  lease  if  he  would  escape  liability.^^  Where  a  lease  pro- 
vided tliat  "  the  lessee  shall  complete  a  well  within  six  months 
from  the  date  hereof  or  in  default  thereof  pay  to  the  party  of  the 
first  part,  for  further  delay,  an  annual  rental  of  seven  hundred 
dollars  in  advance  on  the  said  premises,  from  the  time  above 
specified  until  such  well  shall  be  completed,  .  .  .  and  a 
failure  to  complete  said  well  or  pay  said  rental  for  ten  days 
after  the  time  above  specified  for  so  doing,  shall  render  the 
agreement  null  and  void,  and  it  can  only  be  renewed  by  mutual 
consent;  and  no  right  of  action  shall  accrue  after  such  failure 
to  either  party  on  account  of  the  breach  of  any  promise  or 
agreement  herein  contained,"  it  was  held  that  the  lessee  had  an. 
option  to  drill  a  well  within  six  months  from  the  date  of  the 
lease  and  by  paying  seven  hundred  dollars  within  ten  days 
thereafter,  a  further  option  for  one  year;  and  that  the  lessee, 
having  a  mere  option,  could  set  up  his  own  default,  availing 
himself  of  the  elective  right  secured  to  him  in  his  contract.''' 
If  the  terms  of  the  lease  expressly  provide  that  the  lease  shall 
be  voidable,  at  the  option  of  either  party,  or  the  lessee ;  then 
the  latter  may  unquestionably  avoid  liability  by  neglecting  to 
comply  with  its  requirements.^^  Where  a  lease  provided  that 
the  lessee  was  to  pay  a  bonus  of  one  hundred  dollars,  and  a 
royalty  of  one-eighth  part  of  the  oil  produced ;  that  it  Avas  to 
continue  five  years,  and  as  much  longer  as  gas  or  oil  was  found 

*3o  Woodland  Oil  Co.  v.  Crawford,  32  Van   Voorhis   v.   Oliver,    supra. 

55  Ohio  St.   161 ;    36  Ohio  L.   Bull.  See  Ray  v.  Natural  Gas  Co.,  138  Pa. 

231;  44  N.  E.  Rep.  1093;   34  L.  R.  St.  576;  20  Atl.  Rep.  1065;  Glasgow 

A.    62;    Van  Voorhis  v.   Oliver,   22  v.  Griffith,  22  Pittsb.  L.  J.    (N.  S.) 

rittsb.  L.  J.    (N.  S.)    114.  181;    Ramsey  v.   White,   21    Pittsb. 

31  Roberts  v.  Bettman,  45  W    Va.  L.  J.    (N.   S.)    425. 

143;   30  S.  E.  Rep.  95;   Johnstown,  33  Cochran    v.    Pew,    159    Pa.    St. 

etc.,   R.   R.   Co.   V.   Egbert,    152   Pa.  184;    28   Atl.   Rep.   219;    Liggett  v. 

St.  53;  25  Atl.  Rep.  151;  Coulter  v.  Shira,  159  Pa.  St.  350;  28  Atl.  Rep. 

Conemaugh    Co.,    30    Pittsb.    L.    J.  218. 
(N.   S.)    281. 


188  OIL    AND    GAS. 

in  paying  quantities ;  if  gas  were  found,  tlien  three  hundred 
dollars  rental  per  year  for  each  well ;  and  there  was  a  proviso 
that  "  this  lease  shall  become  null  and  void,  and  aU  rights  here- 
under shall  cease  and  determine,  unless  a  well  shall  be  com- 
pleted on  the  premises  within  one  month  from  the  date  hereof, 
or  unless  the  lessee  shall  pay  at  the  rate  of  one  hundred  dollars 
monthly  in  advance  for  each  additional  month  " —  it  was  held 
that  the  lease  contained  no  covenant  binding  upon  the  lessee  to 
pay  rent,  the  only  penalty  imposed  upon  him  being  a  forfeiture 
of  his  rights  under  the  agreement.  "  But  the  payment,"  said 
the  court,  "  w^as  means  provided  by  the  contract  by  which  the 
exercise  of  the  right  of  the  lessor  to  assert  a  forfeiture  could 
be  postponed.  If  the  lessee  did  not  w^ish  to  postpone  the  ex- 
ercise of  such  right,  he  had  only  to  refrain  from  making  the 
payment."  ^*  Where  an  oil  lease  was  given  for  a  certain  period, 
providing  that  it  should  become  void  and  the  rights  of  the  lessee 
under  it  should  cease  unless  a  well  should  he  completed  on  the 
premises  within  a  certain  i>eriod  of  time,  or  unless  the  lessee 
should  pay  a  certain  sum  for  each  year  the  completion  of  the 
\vell  should  be  delayed ;  it  was  held  that  the  terms  of  the  lease 
did  not  require  the  lessee  to  develop  the  land  or  pay  the  rent,  the 
only  penalty  for  such  a  failure  being  a  forfeiture  of  his  rights 
under  it.^^ 

§155.     Lessee  cannot  insist  on  forfeiture  to  escape  rent. 

A'  lessee  cannot  insist  that  he  is  not  liable  because  the  lessor 
had  the  right  to  declare  a  forfeiture,  and  that  there  were  con- 
ditions authorizing  him  to  declare  forfeiture  many  years  before, 

in  order  to  escape  the  payment  of  rent.     In  such  an  instance  it 

■^ 

34  Glasgow   V.    Chartiers   Oil   Co.,  Ct.    607;    Snodgrass   v.   South,   etc., 

152   Pa.   St.   48;    25   Atl.   Rep.   232.  Oil   Co.,   47   W.   Va.   509;    35   S.   E. 

"  This   case  is  not  ruled,"   said  the  Rep.   820. 

court,  "  by  Ray  vs.  The  Natural  Gas  In  New  Jersey,  by  1  Gen.  St.,  p. 
Co.,  138  Pa.  St.  576  [20  Atl.  Rep.  880,  Sees.  135  and  136,  the  default- 
1065,  12  L.  R.  A.  290],  and  kindred  ing  lessee  has  the  same  right  to  de- 
cases."  See  Miller  v.  Balfour,  138  clare  a  forfeiture  as  the  lessor  has. 
Pa.  St.  183;  22  Atl.  Rep.  86.  Boys    v.    Robinson     (N.    J.    L.),    38 

ssMcKee  v.  Colwell,  7  Pa.  Super.  Atl.  Rep.  813. 


FORFEITURE    OF    LEASE.  189 

remains  witli  the  lessor  to  determine  whether  he  will  declare  a 
forfeiture  or  insist  upon  the  rent.^*^ 

§156.     Forfeiture  clause  omitted. 

Where  no  forfeiture  clause  is  inserted  in  a  lease,  either  for 
failure  to  pay  rent  or  develop  the  premises ;  and  neither  is  done, 
there  can  be  no  forfeiture  declared.  But  the  failure  to  pay 
rent  according  to  the  terms  of  the  lease,  or  to  develop  the  prem- 
ises, may  be  considered  as  sufficient  evidence,  if  unexplained,  to 
support  the  charge  of  abandonment.^^  And  the  usual  rule  is 
that  a  lease  must  state  the  condition  upon  which  a  forfeiture 
can  be  declared,  or  no  forfeiture  can  be  declared."^  But  where 
the  lease  w^as  limited  to  twelve  months  or  so  long  as  gas  should 
be  found,  for  a  certain  royalty,  and  pay  blank  dollars  per  blank 
time  (the  blanks  not  being  filled)  ;  it  was  held  that  a  forfeiture 
could  be  declared. ^'^ 

§157.     Implied  covenants  do  not  authorize  forfeiture. 

There  can  be  no  forfeiture  for  a  violation  of  an  implied 
covenant,  unless  the  lease  expressly  so  provides.*^'*  "  A  breach 
of  the  implied  covenant  to  reasonably  develop  and  protect  lines 
does  not  have  the  effect  to  forfeit  the  lease  in  whole  or  in  part, 
nor  is  it  good  cause  for  a  court  to  declare  such  forfeiture,  unless 
the  lease  in  express  terms  provides  that  a  breach  of  such  im- 
plied covenant  shall  avoid  or  forfeit  the  lease."  "  It  is  strongly 
urged  that  it  is  inequitable  for  the  lessee  to  hold  on  to  his  lease, 
and  still  fail  so  to  operate  the  premises  as  to  produce  reasonable 
results,  and  that  he  should  either  reasonably  operate  the  prem- 
ises or  get  off  and  peiinit  his  lease  to  be  forfeited.  The  answer 
is  that,  while  there  is  an  implied  covenant  to  reasonably  operate 
the  premises,  there  is  no  implied  or  express  covenant  to  get  off 
and  forfeit  his  lease  for  a  breach  of  such  covenant.     The  lease 

36  Ahrns  v.  Chartiers  Valley  Gas  38  Vandevoort  v.  Dewey,   42   Hun 
Co.,   188  Pa.  St.  249;   41  Atl.  Rep.       68. 

739.     See    Bettman    v.    Shadle,    22  39  Eaton  v.  Allegany  Gas  Co.,  122 

Ind.  App.  .542;  53  N.  E.  Rep.  662.  N.  Y.  416;   25  N.   E.  Rep.   981.  re- 

37  :\Iaishall  V.  Forest  Oil  Co.,  198  versing  42  Hun  61.     See  also  Barns- 
Pa.  St.  S3;  47  All.  Rep.  927.  dall  v.  Boley.  119  Fed.  Rep.  191. 


190  OIT.    AND    GAS. 

in  question  provides  for  a  forfeiture  for  the  failure  to  comply^ 
with  the  conditions,  or  to  pay  the  cash  consideration  in  the  lease 
mentioned,  at  the  time  and  in  the  manner  agreed ;  but  the  im- 
plied covenant,  to  reasonably  operate  the  premises,  is  not  men- 
tioned in  the  lease,  and  is  therefore  not  included  in  the  causes 
of  forfeiture.  Some  causes  of  forfeiture  being  expressly  men- 
tioned, none  other  can  be  implied."  *"  A  few  cases  hold,  how- 
ever, that  a  breach  of  an  implied  covenant  is  sufficient  to  justify 
the  declaration  of  a  forfeiture.*^ 

§158.     Notice  of  election  to  declare  forfeiture. 

If  the  lessor  be  in  possession,  notice  to  the  lessee  of  his  inten- 
tion to  declare  a  forfeiture  is  not  necessary,  unless  the  lease- 
provide  for  it;  and  if  a  notice  is  necessai-y,  the  execution  of  a 
second  lease,  to  the  knowledge  of  the  first  lessee,  is  a  sufficient 
notice  to  him.''"  A  conveyance  of  the  property  in  fee,  by  the 
lessor,  after  default  made,  is  also  a  sufficient  notice  to  the  lessee, 
if  one  be  required.*^  But  if  there  has  been  a  substantial  per- 
formance, or  a  bona  fide  attempt  at  it,  even  though  a  forfeiture 
could  have  been  enforced  by  making  a  demand  and  giving, 
notice,  the  putting  of  another  tenant  on  the  premises,  without 
such  demand  and  notice,  will  not  enable  the  lessor  to  have  a 
forfeiture  declared.*'*  If  the  lessor  give  a  lessee  not  in  actual 
possession  notice  that  the  lease  is  forfeited,  it  is  substantially  a 
declaration  that  he  will  refuse  to  put  him  in  possession.*^  Where 

40  Harris  v.  Ohio  Oil  Co.,  57  Ohio  981,  reversing  42  Hun  61.  See  Cof- 
St.  118;  48  N.  E.  Rep.  502;  1  Ohio  finberry  v.  Sun  Oil  Co.,  67  N.  E. 
N.  P.   132;   38  Wkly.  L.  Bull.  283;       Rep.   1069. 

McKnight  V.  Kreutz,  51  Pa.  St.  232;  42  Allegheny   Oil   Co.   v.   Bradford 

Core  V.  N.  Y.,  etc.,  Co.,  52  W.  Va.  Oil  Co.,  21  Hun  26,  affirmed  86  N. 

-:-;  43  S.  E.  Rep.  128.     The  remedy  Y.  638;   Gadbury  v.  Ohio,  etc.,  Gas 

of  the  lessor  was   considered  to  be  Co.   (Ind.),  67  N.  E.  Rep.  259;  Gad- 

a  suit  for  damages.  bury    v.    Ohio,    etc.,    Gas    Co.     ( Ind 

41  King  V.  Edwards,   32  111.   App.  App.),  65  N.  E.  Rep.  289. 

558 ;   Conrad  v.  Morehead,  89  N.  C.  43  Shepher  v.  McCalmont  Oil  Co., 

31;    Maxwell    v.    Todd,    112    N.    C.  38  Hun  37. 

677;   16  S.  E.  Rep.  926;  Hawkins  v.  44  Kreutz  v.  McKnight,  53  Pa.  St, 

Pepper,  117  N.  C.  407;  23  S.  E.  Rep.  319. 

434;    Barnsdall   v.   Boley,    119   Fed.  45  Carnegie,  etc..  Gas  Co.  v.  Phila- 

Rep.    191;    Eaton    v.    Allegany    Gas  delphia  Co.,  158  Pa.  St.  317 ;  27  Atl. 

Co.,   122  N.  Y.  416;   25  N.  E.  Rep.  Rep.  951. 


FORFEITURE    OF    LEASE.  191 

.■a  lease  provided  that  if  there  was  a  delay  in  developing  the 
premises,  after  written  notice  by  the  lessee  of  a  forfeiture,  the 
lessee  should  have  the  right  to  pay  an  annual  rent  because  of 
such  delay,  it  was  held  that  the  execution  of  a  second  lease  con- 
ditioned on  the  avoidance  of  the  first,  was  not  such  a  written 
notice  as  the  lease  required/"  If  the  lessor  has  demanded  ex- 
•cessive  royalties,  tlien  his  notice  of  a  forfeiture  is  a  nullity.''' 
If  he  has  such  possession  as  entitles  him  to  resist  the  entry  by 
the  lessee  after  a  forfeiture,  no  notice  of  a  forfeiture  is  neces- 
sary.*^ If  the  lessor  desires  to  declare  a  forfeiture  of  the  lease 
for  the  reason  that  the  land  has  not  been  fully  developed,  al- 
though the  lessee  has  entered  and  developed  a  part  of  it,  he 
must  give  notice  to  sucli  lessee  of  his  intention  to  declare  a  for- 
feiture if  the  lease  is  not  fully  developed,  and  reasonable  time 
must  be  given  for  the  development.*''  But  if  a  lease  provide 
that  it  shall  be  subject  to  forfeiture  on  default  of  the  lessee, 
and  authorizes  the  lessor  to  take  possession  "  without  any  notice 
or  legal  process,"  notice  is  not  necessary.^"  So  where  the  con- 
dition in  a  lease  was  that  if  no  well  should  be  completed  within 
a  year  from  tlie  date  of  the  lease,  it  should  be  void,  unless  the 
lessee  pay  a  certain  named  sum  of  money  annui^lly  during  the 
time  the  well  remained  uncompleted,  it  was  held  that  a  failure 
to  complete  the  well  during  the  year,  and  an  omission  to  pay 
the  first  annual  amount,  avoided  the  lease,  without  an  election 
on  the  part  of  the  ownier  to  terminate  it.^^ 

§159.     Waiver  of  forfeiture. 

The  right  of  a  lessor  to  declare  a  forfeiture  and  re-enter  on 
the  leased  premises  because  of  that  fact  may  be  waived  by  him, 
and  often  is,  either  by  express  statements,  or  by  conduct  or  by 

46  South    Penn.    Oil   Co.   v.    Stone  reversing  6  Ohio  Dec.  305.     See  Cof- 

(Tenn.  Ch.),  57  S.  W.  Rep.  374.  finberry   v.   Sun   Oil   Co.,   G7    N.    E. 

*7West    Ridge    Coal    Co.    v.    Van  Rep.   1069. 

Storch,  5  Lack.  Leg.  N.  189.  so  Fisher  v.  Dunring,  53  Mo.  App. 

48  Maxwell    v.    Todd,    112    N.    C.  548. 

«77;    16  S.   E.  Rep.  926.  5i  Kenton   Gas.,   etc.,   Co.   v.   Dor- 

49  Ohio  Oil  Co.  V.  Hurlbut.  7  Ohio  ney,  17  Ohio  Cir.  Ct.  Rep.  101;  9 
Dec.  321;    14  Ohio  C.   C.  Rep.   144;        Ohio  Cir.  Dec.  604. 


192  OIL    AND    GAS. 

acts."""  A  waiver  of  the  time,  however,  within  which  operations 
are  to  be  commenced  is  not  necessarily  a  waiver  of  the  time  for 
com])letion  of  a  welL^"  Tn  the  case  jnst  cited  the  o|>erations 
were  to  begin  within  sixty  days,  and  a  well  to  be  completed 
within  five  months,  and  in  either  event  the  lease  was  to  be  for- 
feited. The  lessor  waived  the  sixty  day  provision ;  bnt  this 
was  held  not  a  waiver  of  the  five  months'  provision,  even  tliongh 
the  lease  was  assigned  after  the  sixty  day  period.  Bnt  if  there 
has  been  such  delay  as  entitles  the  lessor  to  declare  a  forfeiture, 
and  without  doing  so,  he  permit  the  lessee  to  commence  opera- 
tions and  sink  wells  on  the  land  with  his  consent,  he  w^aivcs  his- 
riffht  to  insist  on  a  forfeiture. °*  Even  thou2:h  the  lease  has  ex- 
pired,  yet  if  the  lessor  permit  the  lessee  to  expend  large  sums 
of  money  in  its  development,  thus  leading  the  lessee  to  believe 
that  it  was  not  his  intention  to  claim  a  forfeiture,  he  cannot 
then  declare  a  forfeiture.^"'  IMere  silence,  however,  on  the  part 
of  the  lessor  during  the  time  given  for  the  development  of  the 
premises  will  not  be  a  waiver  of  the  right  to  declare  a  for- 
feiture.^*' But  delay  in  completing  a  well  within  time,  with  the 
assent  of  the  lessor,  wdio  is  anxious  that  the  work  be  continued, 
and  by  his  conduct  and  acquiescence  clearly  make  it  appear  that 
he  does  not  regard  the  delay  as  sufficient  ground  for  declaring 
a  forfeiture,  is  a  waiver  of  the  right  to  declare  it.^^  Where  a 
le^ise  required  seven  wells  to  be  put  down,  acquiescence  in  the 
failure  to  put  do^vn  two  or  three  of  the  preceding  six  wells  was 
held  a  waiver  of  the  right  to  declare  a  forfeiture  as  to  the  delay 
made  in  neglect  to  drill  the  seventh  well  on  time.^®  Where  an 
oil  lease  did  not  make  time  the  essence  of  the  contract,  and  the 
rent  for  delay  for  several  years  had  been  regularly  paid,  and  at 

*■'  52  McCarty  v.  Mellon.  5  Pa.  Dist.  56  Island  Coal   Co.  v.  Combs,   152 

Rep.  425;  Friend  v.  Mallory,  52  W.  Ind.  379;  53  K  E.  Rep.  452;  Adams 

Va.  — ;   43  S.  E.  Rep.   114.  v.  Ore  Knob  Copper  Co.,  7  Fed.  Rep. 

53  Cleminger    v.    Baden    Gas    Co.,  634. 

159  Pa.  St.  16;   28  Atl.  Rep.  293.  57  Elk   Fork    Oil  and   Gas   Co.   v. 

54  Ohio  Oil  Co.  V.  Hurlbut,  14  Jennings,  84  Fed-  Rep.  839 ;  Riddle 
Ohio  Cir.  Ct.  Rep.  144;  7  Ohio  Dec.  v.  Mellon,  147  Pa.  St.  30;  23  Atl. 
321,  reversing  6  Ohio  Dec.  305.  Rep.  241. 

ssDuffield   V.    Michaels.    102   Fed.  5s  Duffield  v.  Hue,  129  Pa.  St.  94; 

Rep.  820;  42  C.  C.  A.  649.  18  Atl.  Rep.  566. 


FORFEITURE    OF    LEASE.  193 

the  time  anotlier  year's  rent  fell  due,  the  lessee  was  daily  ex- 
pending, and  for  ten  days  thereafter  continued  daily  to  expend, 
to  the  knowledge  of  the  lessee,  a  sum  equal  to  a  year  and  a 
half's  rent  under  a  producing  well,  when  he  produced  gas  in 
a  paying  quantity,  it  was  held  that  the  lessee  had  waived  his 
right  to  declare  a  forfeiture,  six  or  seven  days  after  such  rent 
fell  due,  because  of  its  nourpayment  at  the  stipulated  time.^" 
A  delay  for  a  very  short  time  —  as  a  day  or  so  —  will  not  work 
a  forfeiture  where  the  lessor  hy  his  acts  and  declarations  has 
led  the  lessee  into  the  belief  that  a  forfeiture,  because  of  such 
delay,  would  not  be  enforced.''"  Where  the  lessor,  after  acts 
sufficient  for  a  forfeiture  had  taken  place,  gave  a  second  lease  on 
the  premises,  but  endorsed  on  it,  ^'  This  lease  is  taken  suject 
to  "  the  first  lease,  it  was  held  that  the  second  lease  was  not  an 
unequivocal  declaration  of  a  forfeiture  of  the  first  one,  and  that 
the  endorsement  was  such  as  to  enable  the  lessee  to  have  an  er- 
roneous endorsement  made  on  the  first  lease  corrected.**^  Where 
the  acts  of  the  lessor  tending  to  show  a  waiver  are  equivocal,  the 
question  of  waiver  is  one  for  the  jury/'"  The  lessor  may  waive 
the  forfeiture,  although  in  possession,  affirm  the  continuance 
of  the  lease,  and  recover  the  sum  agreed  to  be  paid  under  its 
terms."^  Where  default  was  unintentionally  made  in  the  pay- 
ment of  rental  while  the  lessee  was  engaged  in  drilling  a  second 
well,  and  the  lessor,  with  knowledge  of  the  default,  suffered  him 
to  continue  drilling,  for  some  period  of  time  (as,  for  two 
weeks),  before  declaring  a  forfeiture,  and  the  lessee  immedi- 


59  Lynch    v.    Versailles    Fuel    Gas  ger  v.  Baden  Gas  Co.,   1.59   Pa.   St. 

Co.,   165  Pa.   St.   518;   35  W.  N.  C.  16;    28  Atl.  Rep.   293. 

558;    30   Atl.   Rep.   984.     See   Men-  6i  Schaupp  v.  Hukill,  34  W.  Va. 

fort  V.  Lanyon  Zinc  Co.    (Kan.)    72  375;  12  S.  E.  Rep.  501. 

Pac.  Rep.  784.  e2Wes]ing  v.  Kroll,  78  Wis.  636; 

The  lessor  must  act  promptly,  and  47     N.    W.    Rep.    943 ;     Nelson    v. 

the    result    of    enforcing    the    for-  Eachel,    158    Pa.    St.    372;    27    Atl. 

feiture  must  not  be  unconscionable.  Rep.  1103. 

Thompson   v.    Christie,    138    Pa.    St.  63  Agerter  v.  Vandergi-ift,  138  Pa. 

230;  20  Atl.  Rep.  934;   11  L.  R.  A.  St.  576;   27  W.  N.  C.  230;   21  Atl. 

2.36.  Rep.   202;   Ray  v.  Gas  Co.,  138  Pa. 

"osteiner   v.   Marks,,    172   Pa.   St.  St.  576;   27  W.  N".  C.  230;   20  Atl. 

400;  33  Atl.  Rep.  695.     See  Clemin-  Rep.  1065. 


194  OIL    AND    GAS. 

ately  offered  to  pay  the  rental,  the  court  construed  the  aeticns 
of  the  lessor  as  an  acquiescence  in  the  drilling  of  the  other  wells, 
and  refused  to  sustain  the  declaration  of  a  forfeiture."*  Receiv- 
ing rent  after  default  made  will  ho  a  Avaiver  of  the  right  to 
declare  a  forfeiture  for  a  failure  to  pay  the  rent  at  the  time 
stipulated  for  its  payment  in  the  lease. *''^ 

§160.     Waiver  of  forfeiture  by  accepting  payment. 

An  acceptance  of  rent  for  the  defaulted  i>eriod  or  any  part 
of  it  will  usually  be  a  waiver  of  a  right  to  declare  a  forfeiture.*'*' 
When  rent  was  accepted  by  the  lessor,  with  knowledge  on  his 
part  that  the  lessee  was  every  day  violating  the  covenants  of 
the  lease,  it  was  held  that  the  lessor  accepting  rent  could  not 
declare  a  forfeiture  without  a  reasonable  prior  notice  that  fur- 
ther non-compliance  would  not  be  waived.*'^  Not  in  all  in- 
stances, however,  will  a  forfeiture  be  waived  by  a  receipt  of 
rent.  Thus  where  the  amount  of  the  ore  sold  and  delivered 
could  only  be  ascertained  by  an  examination  of  the  books  and 
accounts  of  the  lessees,  the  acceptance  of  a  part  of  the  rents  or 
royalties  by  one  of  two  joint  lessors,  without  any  knowledge  that 
fl  greater  sum  than  that  tendered  was  due,  was  held  not  to  be  a 
waiver  of  the  forfeiture  caused  by  non-payment  of  the  full 
.amount  due.***  Where  a  lease  required  the  lessee  to  drill  a 
well  within  a  certain  time,  or,  in  default  of  its  completion 
within  such  time,  pay  ten  dollars  for  every  month  until  its 
completion  —  each  payment  to  keep  the  lease  in  force  for  one 
month  only,  it  was  held,  the  well  not  having  been  completed 
within  the  required  time,  that  on  failure  to  make  the  monthly 
payments  required,  the  lessor  had  the  right  to  declare  the  lease 
forfeited,  and  that  he  had  not  waived  his  right  to  declare  a  for- 
feiture by  accepting  payment  for  the  last  preceding  month,  the 

6*McCarty  v.  Mellon,  5  Pa.  Dist.  W .  Va.  —  ;  43  S.  E.  Rep.  114.     See 

Rep.   425.  Monfort  v.  Lanyon  Zinc  Co.    (Kan.) 

G5  Friend   v.   Mallory,   52   W.  Va.  72  Pac.  Rep.  784. 
— ;  43  S.  E.  Rep.  114.  67  Verdolite    v.  o.    v.    Richards,    7 

66  Davis  V.  Moss,  38  Pa.  St.  346;  North    Co.   Rep.    (Pa.)    113. 
Boys   V.    Robinson     (N.    J.    L. ),    38  cs  Boys  v.  Robinson,  supra. 

Atl.  Rep.  Si 3;  Friend  v.  Mallory,  52 


FORFEITURE    OF    LEASE. 


195 


rental  for  the  previous  nxonths  being  unpaid.®*  Tke  receipt  of 
rent,  after  declaring  a  forfeiture  —  or,  by  executing  a  second 
lease  ta  a  third  party  —  will  not  be  a  waiver  of  the  power  to 
declare  such  forfeiture,  contained  in  the  first  lease,  nor  will  it 
reinstate  the  first  lessee  in  his  rights  under  the  lease.^**  But 
if  periodical  rents  are  to  be  paid,  for  which  a  liability  to  a 
forfeiture  will  be  incurred  if  default  be  made  in  the  payment  of 
rent  for  any  period ;  yet,  notwithstanding  that  fact,  the  lessor 
frequently  accept  the  rents  after  the  time  at  which  tliey  should 
have  been  paid  and  does  not  declare  a  forfeiture,  as  to  justify 
the  lessee  in  entertaining  the  belief  that  he  will  not  be  subject 
to  a  forfeiture  by  the  act  of  the  lessor  if  he  make  a  default,  he 
will  not,  after  repeatedly  making  default  in  the  time  of  pay- 
ment, followed  by  payment,  to  and  receipt  of  rent,  by  the  lessor^ 
be  subject  to  a  forfeiture  for  neglect,  to  pay  rents  on  time  there- 
after, unless  the  lessor  notifies  him,  before  default  in  the 
particular  instance,  that  he  would  insist  upon  a  forfeiture  for 
neglect  to  pay  any  rent  falling  due  after  giving  sudi  notice.''^ 
Where  work  is  done  after  default,  in  payment  of  rent  due, 
without  objection  on  the  part  of  the  lessor,  there  is  a  waiver  of 
a  right  to  declare  a  forfeiture  for  neglect.  tO'  pay  such  rent  within 
the  time  required.^"  Agreeing  that  the  time  of  pajmient  may 
be  extended  is  a  waiver  of  the  right  to  declare  a  forfeiture  for 
the  lack  of  payment/'^  Where  the  rent  is  payable  in  a  certain 
bank  by  deposit  therein,  a  deposit  therein  by  check  of  the 
amomit  due,  on  or  before  the  date  of  payment,  is  sufficient  to 
prevent  a,  forfeiture.'*  Waiver  of  one  stipulation  in  a  lease  is 
not  a  waiver  of  other  independent  stipulations.^^     A  lease  re- 

RoDuffield    V.    Michaels,    97    Fed.  Co.,   85  Mich.   G05;   49  N.   W.  Rep. 

Rep.  825.  135. 

70  Guffey  v.  Hukill,  34  W.  Va.  49 ;  'i  Friend  v.  Mallory:  52  W.  Va. 
11  S.  E.  Rep.  754.  See  Hukill  v.  —  ;  43  S.  E.  Rep.  114.  See  Mon- 
GufFey.  37  W.  Va.  425;  16  S.  E.  fort  v.  Lanyon  Oil  Co.  (Kan.)  TZ 
Rep.  544.  Pae.  Rep.  784. 

71  Hukill  V.  Myers,  36  W.  Va.  75  Murray  v.  Heinze,  17  Mont, 
639;   15  S.  E.  Rep.  157.  353;    42    Pac.    Rep.    1057;    43    Pae, 

"McCarthy  v.  Mellon,  5  Pa.  Dis;t.  Rep.  713;  Brown  v.  Vandergrift,  80 
R.   425.  Pa.    St.    142. 

73  Wakefield  v.  Sunday  Lake,  etc., 


196  OIL    AND    GAS. 

quired  a  well  to  be  completed  within  two  months  and  if  not 
the  lease  to  be  void  unless  the  lessee  after  that  time  should  pay 
monthly  ten  dollars  for  each  month's  delay  in  completing  a  well ; 
and  it  also  required  o}>erations  on  the  well  to  be  commenced  in 
thirty  days,  and  if  not,  ten  dollars  extra  should  be  paid  for  the 
second  month ;  but  work  was  not  begun  within  tlie  first  month, 
nor  a  well  completed  within  two  months  and  eight  days.  At 
the  end  of  the  second  month,  the  lessee  paid  ten  dollars ;  and 
twelve  days  after  the  end  of  tJie  third  he  tendered  ten  dollars 
more,  which  was  refused.  It  was  held  that  the  first  ten  dollar 
payment  could  not  be  claimed  by  the  lessor  as  a  payment  on 
account  of  the  money  to  be  paid  extra  for  the  second  month,  and 
that  a  lease  given  to  a  third  party  after  the  end  of  the  third 
month,  and  before  the  well  had  been  completed,  under  the  claim 
that  the  first  lease  had  been  forfeited  by  reason  of  the  non- 
payment of  the  sum  agreed  upon  to  be  paid  for  delay,  was  void. 
It  was  also  held  that  the  payments  to  be  made  "  for  each  month's 
delay  in  completing  "  the  well  not  being  made  payable  in  ad- 
vance by  the  terms  of  the  lease,  the  lessor  could  not  claim  a 
forfeiture  five  days  after  the  close  of  the  third  month,  on  the 
ground  tliat  the  well  was  not  then  completed,  and  the  lessee  had 
failed  to  make  payment  for  delay  for  the  fourth  month.^" 

§161.     Eviction  of  lessee. 

An  eviction  of  the  lessee  by  the  lessor  will  excuse  him  from 
carrying  out  the  terms  of  his  lease,  and  will  also  prevent  a  for- 
feiture of  it  on  his  part-  The  eviction  may  be  purely  con- 
structive; such  as  a.  conveyance  of  vacant  lots,  that  have  been 
leased,  by  the  lessor,  without  any  reservation  of  the  lessee's 
right  of  entry  to  drill  for  oil  or  gas.^^     But  the  entry  of  a  lessor 

"•■'  DiilTield    V.    Michaels.    102    Fed.  gas  from  the  well  without  incurring 

Rep.  820;  42  C.  C.  A.  649.  obligation  under  the  contract  to  the 

Where  a  lessor  was  to  receive  gas  appellant  [lessee]."  American  Win- 
free  for  his  use,  the  use  of  the  gas  dow  Glass  Co.  v.  Williams  (Ind. 
after  forfeiture  incurred  was  held  App.),  66  N.  E.  Rep.  912. 
not  to  be  a  waiver  of  his  right  to  77  Mathews  v.  People's  Natural 
declare  and  insist  upon  a  forfeiture.  Gas  Co.,  179  Pa.  St.  165:  30  W.  N. 
"The  land  with  the  well  upon  it  be-  C.  544;  27  Pittsb.  L.  J.  (N.  S.) 
ing  the  property  of  the  appellee  421;  36  Atl.  Rep.  216. 
[lessor],  he  had  the  right  to  use  the 


FORFEITURE    OF    LEASE. 


197 


and  the  construction  by  him  of  a  building  on  the  land  was  held 
not  to  be  such  a  resumption  of  possession  as  will  terminate  his 
right,  thereafter  to  demand  rent,  simply  because  he  set  his  build- 
ing where  the  lessee  had  set  a  stake  to  designate  the  place 
where  the  well  was  to  be  drilled,  the  building  not  otlierwise 
preventing  the  development  of  the  premises.'^'^ 

^162.     Failure  to  operate  and  not  for  failure  to  develop. 

Occasionally  leases  are  met  with  that  a  failure  to  develop 
within  the  time  given  for  development  will  not.  work  a  for- 
feiture; but  a  failure, after  develop'ment  to  operate  will  have 
that  effect..  Thus  in  a  lease  of  a  coal  bank,  the  lease  required 
the  lessee  tO'  put.  the  bank  in.  good  working  order  for  the  rent  of 
the  first,  year,  but  thereafter  to  pay  a  royalty  on  every  bushel  of 
coal  taken  out;  and  if  the  coal  bank  should  remain  idle  by  the 
act  of  the  lessee,  when.  it.  would  yield  coal,  for  the  term  of  one 
year,  it  should  be  considered  abandoned.  It  was  held  that  a 
failure  to  put  the  coal  bank  in  good  working  order  the  first  year 
did  not  constitute  an  abandonment  of  it;  the  clause  of  for- 
feiture not  applying  to  such  neglect.''^ 

§163.     Continuance  of  operations. 

Where  a  lease  provides  a  forfeiture  for  a  neglect  or  failure 
to  operate  the  oil  or  gas  wells,  no  makeshifts  of  operation  will 
prevent  the  forfeiture.     In  such  an  instance  the  operation  of 

78  Mathews    v.    People's    Natural  liams    (Ind.   App.),   6G   N.   E.   Rep. 

Gas  Co.,  179  Pa.  St.  165;  27  Pittsb.  912. 

L.   J.    (N.    S.)    421;    39   W.    N.    C.  Where  a  lessor  of  a  mineral  mine 

544;   36  Atl.  Rep.  216.  was  to  be  paid  only  out  of  the  net 

70  ]\Ioyers  v.  Tiley,  32  Pa.  St.  267.  proceeds,  and  there  were  no  net  pro- 

Soe  Thompson  v.   Christie,   138   Pa.  ceeds,  although  the  mine  was  operat- 

Rt.  230;   20  Atl.  Rep.  934;   1  L.  R.  ed,  it  was  held  that  the  lessee  was 

A.  290;  Barnsdall  v.  Boley,  119  Fed.  not    liable    on    the    ground    that    he 

Rep.   191 ;   and  Parish  Fork  Oil  Co.  did  not  continuously  work  the  mine, 

V.   Bridgewater  Oil   Co.,   51   W.  Va.  not  being  bound  to  do  so  in  the  ab- 

583;  42  S.  E.  Rep.  655;  Gadbury  v.  sence  of  a  special  agreement.  Caley 

Ohio,  etc.,  Gas  Co.   (Ind.),  67  N.  E.  v.    Portland    (Colo.),   71    Pac.   Rep. 

Rep.  259 ;  Gadbury  v.  Ohio,  etc..  Gas  892.     See     Colorado,     etc.,     Co.     v. 

Co.   (Ind.  App.),  65  N.  E.  Rep.  289;  Pryor,  25  Colo.  540;  57  Pac.  Rep.  51. 
American  Window  Glass  Co.  v.  Wil- 


198  OIL    AND    GAS. 

the  well  means  the  extraction  of  oil  or  gas  from  the  premises ;: 
and  the  lessee  cannot  successfully  claim  that  entries  from  time 
to  time  to  clean  and  grease  an  engine  which  he  had  erected  on 
the  premises  and  used  in  pumping  oil,  or  in  any  other  legitimate 
way,  was  a  continuance  of  mining  operations,  in  order  to  pre- 
vent a  forfeiture.^"  Cessure  of  operation  for  nine  months  w^as 
held  to  be  such  a  neglect  as  entitled  the  lessor  to  a  forfeiture. 
"  In  the  rapid  development  and  exhaustion  of  lands,  cessation  of 
work  for  nine  months  is  a  long  period.  Often,  in  far  less  time, 
the  fluctuations  in  prices  of  lands  and  leaseholds  is  very  great. 
Perhaps  in  no  other  business  is  prompt  performance  of  contract 
so  essential  to  the  rights  of  the  parties,  or  delay  by  one  party 
likely  to  prove  so  injurious  to  the  other."  ^^ 

§164.     Production  of  gas  will  not  prevent  forfeiture  of  an  oil 
lease.  —  Reimbursement. 

If  the  lease  is  for  the  development  of  the  leased  premises  for 
oil,  the  production  of  gas  will  not  prevent  its  forfeiture,  al- 
though the  gas  may  be  a  valuable  product.^^  In  such  an  in- 
stance the  lessee  has  no  right  to  be  reimbursed  the  expenses  of 
his  operations  out  of  the  proceeds  of  the  gas  obtained ;  for  an 
oil  and  not  a  gas  lease  was  contemplated  by  the  parties  when 
it  was  executed.*^ 

§165.     Covenant  uncertain. 

To  authorize  a  forfeiture  for  a  failure  to  keep  a  covenant,  it 
must  not  only  be  valid  but  also  certain.  Thus  where  the  lessee 
covenanted  to  complete  four  oil  wells  within  a  year,  and  stip- 

■*80  Davis  V.  Moss,  38  Pa.   St.  346.  tion   to    abandon    or   surrender    the 

81  Monroe   v.    Armstrong,    96    Pa.  lease    itself.     Parish    Fork    Oil    Co. 

St.   307.     See  also  Parish  Fork  Oil  v.  Bridgewater  Gas  Co.,  51  W.  Va. 

Co.  V.   Bridgewater  Gas  Co.,  51  W.  583;   42  S.  E.  Rep.  655. 
Va.  583;  42  S.  E.  Rep.  655;  Barns-  See   the   excellent   case   of   Coffin- 

dall   V.   Boley.    119    Fed.   Rep.    191;  berry  v.  Sun  Oil  Co.    (Ohio)     67  N. 

Federal  Oil  Co.  v.  Western  Oil  Co.,  E.   Rep.   1069. 
112  Fed.  Rep.  373.  82  Truby  v.  Palmer,  4  Cent.  Rep. 

The   law   recognizes   a   distinction  (Pa.)   925;  6  Atl.  Rep.  74. 
between  the  abandonment  of  opera-  83  Palmer   v.   Truby,    136    Pa.   St.- 

tions  under  an  oillease  and  an  inten-  556;   20  Atl.  Rep.  516. 


FOEFEITURE    OF    LEASE.  199 

iilated  if  he  did  not  that  twenty-two  acres  should  be  forfeited 
for  each  well  not  so  completed,  it  was  held  that  the  forfeiture 
clause  was  void  for  uncertainty,  and  could  not  be  enforced.^* 
And  where  the  lessee  of  a  mine  covenanted  to  "  use  all  economy 
in  the  conduct  and  management  of  the  mining  enterprise,"  it 
was  held  that  it  was  too  uncertain  to  be  recognized  as  a  condi- 
tion, for  the  breach  of  which  a  forfeiture  would  be  exacted.^^ 

§166.     Re-entry. 

A  forfeiture  may  be  incurred  by  a  breach  of  eitlier  a  covenant 
or  a  condition  subsequent.  If  it  be  incurred  by  reason  of  a 
breach  of  a  covenant,  then  the  right  of  re-entry  must  be  reserved 
to  work  a  forfeiture.^**  In  the  case  of  a  condition  subsequent 
a  right  of  re-entry  need  not  be  expressly  reserved  if  the  condi- 
tion is  expressed.  But  a  re-entry  is  necessary  to  defeat  the 
lease,^^  or  acts  that  are  equivalent  to  it  —  such  as  bringing  an 
action  in  ejectment,*^  If  a  lessor  be  in  possession,  then  a  re- 
entry is  not  necessary,  nor  is  a  demand  for  possession.  The 
law  does  not  require  a  useless  act.  In  the  case  of  a  gas  or  oil 
lease,  where  the  lessor  is  in  possession  of  the  ground  for  the  pur- 
poses of  tillage,  he  has  sudi  a  possession  as  not  to  require  a  re- 
entry,®'* and  there  must  be  a  breach  of  the  condition  or  covenant 

84  Thomas  v.  Kirkbride,  15  Ohio  Stearns  v.  Harris,  8  Allen  597;  Mc- 
Cir.  Ct.  Rep.  294;   8  Ohio  Dec.  181.  Kelway   v.    Seymour,    29    N.    J.    L. 

85  Benaivder  V.  Hunt,  79  Tex.  383 ;  321;  Boys  v.  Robinson  (N.  J.  L.), 
15  S.  W.  Rep.  396.  38  Atl.  Rep.  813;  Hoch  v.  Bass,  133 

86  Doe  V.  Jepson,  3  B.  and  Ad.  Pa.  St.  328;  19  Atl.  Rep.  360.  As 
402;  1  L.  J.  K.  B.  154;  Jones  v.  in  the  usual  lease  of  premises  for 
Carter,  15  M.  and  W.  718;  Clark  v.  gas.  Gadbury  v.  Ohio,  etc.,  Gas  Co. 
Jones,  1  Denio  516;  Brown  v.  Bragg,  (Ind.),  67  N.  E.  Rep.  259. 

22  Ind.  122 ;  Den.  v.  Post,  25  N.  J.  so  Guffey  v.  Hukill,  34  W.  Va.  49 ; 

L.  285;  Wheeler  v.  Earl,  5  Cush.  31.  11  S.  E.  Rep.  754;   8  L.  R.  A.  759; 

87  Andrews  v.  Senter,  32  Me.  394;  Adams  v.  Ore  Knob  Copper  Co..  7 
Bowen  v.  Bowen,  18  Conn.  535;  Rol-  Fed.  Rep.  634;  Allegheny  Oil  Co.  v. 
lins  V.  Riley,  44  N.  H.  9;  Hamilton  Bradford  Oil  Co.,  86  N.  Y.  638;  af- 
V.  Elliott,  5  S.  and  R.  375;  Hawkins  firming  21  Hun  26;  Hawkins  v, 
V.  Pepper.  117  N.  C.  407;  23  S.  E.  Pepper.  117  N.  C.  407;  23  S.  E.  Rep. 
Rep.  434.  434;    Maxwell    v.   Todd,    112   N.    C. 

88Goodright    v.    Cator.    2    Dougl.  677;  16  S.  E.  Rep.  926;  Island  Coal 

485;   Doe   v.   Masters.   2   B.   and   C.  Co.  v.  Combs,   152  Ind.  379;   53  N. 

490;   Osgood  v.   Abbott.  58  Me.   73;  E.    Rep.    452. 
Ponda     V.     Sage,     46     Barb.      109; 


200  OIL    AND    GAS. 

mentioned  in  the  lease.''^  The  right  to  re-enter,  however,  may 
be  waived  or  deferred,  as  by  an  act  extending  the  time  within 
which  a  payment  of  the  rent  might  be  made.  Even  if  notice  to 
qnit  is  given,  but  accompanied  by  an  assurance  that  another 
notice  will  be  given,  tlic  right  to  re-enter  is  not  complete  until 
such  second  notice  has  been  served  on  the  lessee.''^  If  the  re- 
entry be  illegal,  and  the  lessor  operate  the  oil  wells,  he  must  ac- 
count to  the  lessee  for  the  oil  taken  out  by  him  at  its  market 
value,  less  the  royalty  and  the  actual  cost  of  operating  the 
wells,  of  permanent  and  necessary  improvements  made  by  him, 
and  of  money  actually  paid  by  him  for  labor  claims  against  the 
lessee's  property.'''"  If  the  lessee  dispute  all  the  assertions  of 
forfeiture,  but  the  lessor  has  re-entered,  a  preliminary  injunc- 
tion will  be  awarded  and  continued  to  restrain  the  lessor  for 
continued  interference  with  the  premises ;  ^^  and  the  lessor  can- 
not, under  such  circumstances,  apply  for  a  preliminary  in  junc- 
tion to  restrain  the  lessee  from  entering  upon  the  premises.'** 

§167.     Release  of  premises  equivalent  to  a  re-entry. 

The  execution  of  a  second  lease  to  a  third  person,  after  for-' 
feiture  incurred,  is  equivalent  to  a  re-entry,  and  is  as  effectual 
for  all  purposes  as  the  re-entry  itself."^  A  demand  for  the 
payment  of  the  rent  due,  where  the  forfeiture  is  for  that  reason, 
is  not  necessary  before  executing  the  second  lease. ®^  Not  in 
every  instance,  however,  will  the  execution  of  a  second  lease  be 
equivalent  to  a  re-entry  nor  to  a  declaration  of  a   forfeiture. 

90  Harris    v.    Ohio    Coal    Co.,    57  ^^  Potterie    v.    Potterie    Gas    Co., 

Ohio  St.    118;   48   N.  E.   Rep.   502;  153  Pa.  St.  13;  25  Atl.  Rep.  1107. 
JiIcKmght  V.  Kreutz,  51  Pa.  St.  232.  os  Allegheny   Oil   Co.   v.    Bradford 

See  Thompson  v.   Christie,   138  Pa.  Oil  Co..  86  N.  y.  638;  affirming  21 

St.  230;  20  Atl.  Rep.  934;   11  L.  R.  Hun  26;  Huggins  v.  Daley,  99  Fed. 

A.  236.  Rep.    606;    40    C.    C.    A.    12;    48    L. 

ni  Wakefield  v.  Sunday  Lake,  etc.,  R.  A.  320;  Guffey  v.  Hukill,  34  W. 

Co.,   85   Mich.   605;    49   N.   W.   Rep.  Va.  49;    11   S.  E.  Rep.  754;   Kenton 

135.  Gas,  etc.,  Co.  v.  Dorney.  17  Ohio  Cir. 

!'^  Wakefield  v.  Sunday  Lake,  etc.,  Ct.  Rep.  101 ;  9  Ohio  Cir.  Dee.  604. 
Co.,   85  Mich.   605;    49   N.   W.   Rep.  ne  Wolf    v.    Guffey,    161     Pa.    St. 

135.  276;  28  Atl.  Rep.  1117;  Parish  Fork 

93  Potterie    Gas    Co.    v.    Potterie,  Oil  Co.  v.  Bridgewater  Gas  Co.,  51 

153  Pa.  St.  10;  25  Atl.  Rep.  1107.  W.  Va.  583;  42  S.  E.  Rep.  655. 


FORFEITURE    OF    EEASE.  201 

Thus  giving'  a  second  lease  subject  to  the  first  one  is  not  a  re- 
entry nor  a  declaration  of  a  forfeiture.'*'  And  where  the  second 
lease  is  silent  on  the  subject  of  the  forfeiture  of  the  first  lease, 
oral  evidence  is  admissible  to  show  it  was  not  the  intention  of 
the  lessor  to  declare  a  forfeiture  of  such  first  lease.""*  And  if 
there  has  been  a  waiver  of  the  time  or  manner  of  payment  of 
the  rent  specified  in  the  first  lease,  the  execution  of  a  second 
lease  because  of  a  failure  to  make  payment  in  the  manner  and 
at  the  time  required  by  such  first  lease  will  not  be  sufficient  to 
complete  its  forfeiture."''  Where  a  lease  has  not  only  been  for- 
feited but  also  abandoned  by  the  lessee,  and  he  has  given  up  all 
hope  of  developing  the  lands,  the  execution  of  a  second  lease 
by  the  lessor,  ''  subject  to  "  the  first  lease,  will  not  be  construed 
as  a  recognition  of  the  validity  of  such  first  lease.^°°  Where  a 
first  lease  had  expired,  and  also  a  second  one  given  to  a  third 
person,  and  the  lessee  under  the  first  lease  took  possession  with 
the  lessor's  consent,  and  at  great  expense  produced  oil  in  pay- 
ing quantities,  it  was  held  that  the  second  lessee  could  not  main- 
tain an  action  for  the  possession  of  the  premises."^  Where  the 
first  lease  requires  the  lessee  to  re-convey  the  premises,  in  case 
of  acts  of  forfeiture  or  abandonment,  the  execution  of  a  second 
lease  will  not  work  a  forfeiture.""  ^Miere  a  part,  of  the  prem- 
ises were  subleased  by  the  lessee,  subject  to  the  conditions  of 
the  first  lease,  which  the  sublessee  assumed,  but  tlie  lessee  con- 
tinued tO'  pay  the  rent  until  the  last  payment,  when  he  de- 
faulted ;  and  thereupon  the  lessor  executed  a  second  lease  to  the 
sublessee  for  the  entire  pTemises,  providing  that  such  sublessee 
should  stand  between  him  and  "  all  who  may  have  claim  to  this 
lease,"  this  was  held  not  to  w^ork  a  forfeiture  of  the  first  lease.^"^ 
Where  a  lease  is  executed  giving  tlie  lessor  an  option  to  declare 

9T  Schaupp  V.  Hukill,   34   W.  Va.  loo  Elk  Fork  Oil  and  Gas  Co.  v. 

375;    12   S.  E.  Rep.   501;   Henne  v.  Jennings,  84  Fed.  ^lep.  839. 

South  Penn.  Oil  Co.,  52  W.  Va.  — ;  loi  Thomas  v.  Hukill,  34  W.  Va. 

43  S.  E.  Rep.   147.  385;    12  S.  E.  Rep.   522. 

08  Thomas   v.   Hukill,    34   W.   Va.  102  Northwestern  Ohio,  etc.,  Co.  v. 
385;  12  S.  E.  Rep.  522.  Browning.  15  Ohio  Cir.  Ct.  Rep.  84; 

09  Hukill    V.    :\reyers,    36    W.    Va.  8  Ohio  Cir.  Dec.  188. 

639;    15   S.   E.   Rep.   151.  i03  Akin  v.  Marshall  Oil  Co.,  188 

Pa.  St.  602;  41  Atl.  Rep.  748. 


202  OIL    AND    GAS. 

it  forfeited,  under  eertain  cireunistances,  which  have  occurred, 
the  execution  of  a  second  lease  after  the  occurrence  of  tJie  facts 
autliorizing  a  forfeiture  is  a  sufficient  declaration  of  the  lessee 
that  he  is  exercising  his  right  of  option  to  declare  the  first  lease 
forfeited  or  at  an  end/"* 

§168.     Surrender  after  assignment  or  conveyance. —  Forfeiture. 

After  he  has  made  an  assignment  of  a  lease,  the  lessee  has  no 
power  to  make  a  surrender  of  it,  nor  to  take  advantage  of  his 
own  default,  wdiere  he  would  have  had  the  right  if  he  had  re- 
mained the  owner  of  the  lease ;  nor  can  the  lessor  declare  a  for- 
feiture after  he  has  conveyed  away  the  premises.^"^  After  the 
lessor  has  transferred  a  lease,  he  has  no  |X)wer  to  accept  a  sur- 
render of  it,  but  the  acceptance  must  be  by  his  assignee  or 
grantee.^'*'^ 

§169.     Forfeiture  of  only  part  of  lease. 

If  the  lease  require  several  wells,  within  different  periods  of 
time  to  be  drilled,  a  failure  to  put  down  all  of  them  wutliin 
the  several  times  required  Avill  not  ahvays  work  a  forfeiture  of 
the  entire  lease.  Of  course,  to  prevent  a  forfeiture  of  the 
entire  lease  the  wells  actually  drilled  must  be  paying  or  pro- 
ducing wells,  for  dry  wells  will  not  keep  a  lease  alive.  In 
one  case  where  the  wells  were  to  be  completed  within  successive 
periods  of  time,  and  while  two  were  completed  the  third  was 
not,  the  lease  was  considered  forfeited  as  to  one-third  of  the 
■territory  covered  by  it.^°^     If  the  number  of  wells  to  be  sunk 

104  Huggins  V.  Daley,  99  Fed.  Rep.  St.  230;  27  W.  N.  C.  87;  20  Atl. 
606;    40  C.   C.   A.    12;    48  L.   R.   A.        Rep.  934;    11  L.  R.  A.  236. 

320.  107  Cryan   v.    Ridelsperger,    7   Pa. 

A   second   lease   that  is  void,   be-  Co.   Ct.   Rep.   473.     See   Baldwin  v. 

cause  the  lessee   therein   had  notice  Ohio  Oil  Co.,   13  Ohio  Cir.  Ct.  Rep. 

of  tne  first  lease,   will  not  work  a  519;  7  Ohio  Dec.  50. 

forfeiture.      Friend    v.    ISIallory,    52  A     stipulation     that     twenty-two 

W.  Va.  — ;  43  S.  E.  Rep.  114.  acres  shall  be  forfeited  for  everyone 

105  Ohio  Iron  Co.  v.  Auburn  Iron  of  the  required  wells  not  sunk  is 
Co.,  64  Minn.  404;  67  N.  W.  Rep.  void  for  uncertainty.  Thomas  v. 
221.  Kirkbridge,    15   Ohio   Cir.   Ct.    Rep. 

106  Thompson  v.  Christie,  138  Pa.  294;  8  Ohio  C.  D.  181. 


FORFEITURE    OF    LEASE.  203 

on  the  leased  premises  are  not  stated  in  the  lease,  the  lessee 
cannot  escape  by  sinking  a  single  producing  well,  or  even  two 
or  three,  if  not  sufficient  to  develop  and  secure  all  the  oil  under 
the  surface.  He  must  sink  enough  wells  to  secure  all  the  oil, 
especially  if  it  is  probably  escaping  to  adjoining  premises  in 
which  he  is  interested ;  and  if  he  do  not,  he  will  forfeit  all  that 
part  of  the  premises  not  sufficiently  occupied  with  wells."*  By 
a  number  of  leases,  similar  in  terms,  obtained  from  several 
persons,  a  lessee  acquired  the  exclusive  right  in  a  large  terri- 
tory^ to  drill  and  operate  for  oil  and  gas.  He  agreed  to  give 
each  lessee  a  certain  portion  of  the  oil  obtained,  and  pay  a  cer- 
tain annual  sum  for  each  gas  well.  On  pain  of  forfeiture  he 
was  required  to  put  down  one  test  well  within  a  year  from  the 
date  of  the  leases.  The  leases  were  to  run  ten  years.  The 
putting  down  of  one  test  well  within  a  year  was  not  considered 
sufficient  to  vest  in  him  an  absolute  right  to  the  territory  cov- 
ered by  all  the  leases,  it  was  said,  but  he  must  proceed  and 
develop  within  a  reasonable  time  after  sinking  such  test  well  at 
least  one  well  on  each  of  the  leased  premises,  and  a  failure  to 
do  so  as  to  any  one  lease  was  an  abandonment  of  the  premises 
described  in  it.  In  passing  on  the  case  the  court  used  the  fol- 
lowing language : 

"  With  the  conclusion  reached  by  the  lessors  that  Johnston 
(the  lessee)  had  abandoned  the  leases,  we  fully  concur,  and  we 
further  find  from  the  evidence  that,  as  to  these  particular  leases, 
it  was  his  intention  to  do  so.  Both  public  and  private  interests 
require  that  such  facts  as  are  disclosed  by  the  testimony  in  these 
cases  should  be  held  by  a  court  of  equity  to  constitute  abandon- 
ment of  the  leases  involved,  because  of  non-development.  It 
should  be  kept  in  mind  that  Johnston  in  all  these  leases  was 
the  party  who  was  to  take  initiative.  He  was  the  actor  who 
was  to  commence  development  and  make  the  search  on  all  the 

losColgan   v.    Forest   Oil   Co.,    30  dergrift,  30  Pittsb.  L.  J.   (N.  S.)  39. 

Pittsb.   L.   J.    (N.   S. )    68.     In   this  But  both  cases  were  reversed,  \oung 

case    twenty    days    were    given    in  v.  Forest  Oil  Co.^   194  Pa.  St.  243; 

which    to    sink    the   required    wells,  45  Atl.  Rep.   121 ;   Colgan  v.  Forest 

and  if  not  so  done,  the  unoccupied  Oil   Co.,    194   Pa.    St.   234;    45   Ati. 

part  of  the  premises  were  to  be  for-  Rep.  119;  Coffinberry  v.  Sun  Oil  Co. 

feited.     Same  rule  in  Young  v.  Van-  (Ohio)   67  N.  E.  Rep.  1069. 


20-1  OIL    AND    GAS. 

land  described  in  them.  This  he,  fur  reasons  of  his  own,  so  far 
as  these  particular  leases  were  concerned,  failed  to  do  from 
1889  to  1897.  He  now  asks  a  court  of  eciuitv,  after  such  un- 
reasonable delay  on  his  part,  and  gross  neglect  of  his  implied 
duty,  and  after  there  has  been  a  material  change  in  the  situa- 
tion, brought  alwut  by  the  efforts  of  others  in  interest,  to  decree 
that  he  is  entitled  to  the  possession  of  the  property  he  had  aban- 
doned. To  so  decree  would  be  not  only  unconscionable,  but 
would  retard  tlie  development  of  the  country,  and  at  the  same 
time  it  would  reward  those  who  have  been  negligent,  and  punish 
those  who  have  been  prompt,  in  the  discharge  of  their  contract 
duties. 

"  After  Johnston  caused  the  Smitb  well  tx)  Ix'  drilled  it  wns 
his  privilege  to  determine  —  using  for  that  purpose  the  in- 
formation secured  by  that  well  —  in  what  direction  nml  in  what 
particular  tracts  of  land  he  would  make  his  subsequent  devel- 
opments, and,  if,  in  so  doing,  his  conduct  and  his  declarations 
resulted  in  the  abandonment  of  the  leases  located  in  other  sec- 
tions, for  any  niisfortuno  occasioned  to  him  thereby  he  must 
hold  his  owTi  judgment  responsible  and  not  the  judgment  of  the 
court.  It  was  evidently  not  the  intention  of  Johnston,  when 
the  numerous  leases  were  executed  to  him  in  1889,  amounting 
in  the  aggregate  to  over  twenty  thousand  acres,  to  drill  wells 
upon  each  and  every  separate  tract,  but  he  intended,  using  each 
separate  search  as  an  indicator,  to  locate,  if  possible,  tlie  points 
where  oil  and  gas  could  be  found,  and,  having  done  that,  to 
abandon  those  leases  that  previous  development  had  sho\\Ti  to 
be  located  in  unprofitable  localities.  That  he,  and  those  operat- 
ing under  him,  regarded  the  leases  in  the  Elk  Fork  region  of 
Tyler  County  as  worthless,  in  an  oil-producing  sense,  is,  we 
think,  fully  showm  by  the  testimony,  and  such  oonclusion  on 
his  and  their  part  is  but  another  illustration  of  the  uncert.ainty 
and  surprises  that  come  to  those  engaged  in  the  development 
of  oil  territory." 

An  important  feature  of  the  case  is  treated  as  follows : 
"  The  fact  that  all  the  Paova  leases  contained  the  following 
clause,  '  subject  to  the  Johnston  lease,'  must  be  considered  in 
connection  mth  the  circumstances  surrounding  the  parties  when 


FORFEITIRI-:    OF    LEASE.  205 

they  executed  the  same.  In  our  judgment,  the  lessors  intended 
by  tliese  words  to  incorporate  into  their  contracts  tlie  fact  that 
they  had  advised  their  lessee  that  the  land  had  been  theretofore 
leased  to  Johnston,  and  that  he  was  to  take  it  subject  to  the  old 
lease,  with  the  understanding  tliat  if  tlie  Johnston  lease  was 
valid,"  he  took  nothing  by  the  new  gi-ant,  but  that  if  it  was  in- 
valid, the  conveyance  was  then  to  stand  as  a  contract  between 
the  parties.  To  hold,  as  insisted  upon  by  counsel  for  defend- 
ants, that  said  words  were  intended  as  an  admission  of  the  va- 
lidity of  the  Johnston  leases,  would  be  to  hold,  that  the  parties 
to  the  new  leases,  admitted  by  them  that  the  lessor  had  nothing 
to  grant,  and  that  consequently  there  was  notliing  for  the  lessee 
to  take.  Clearly  does  it  appear  that  such  was  neither  the  be- 
lief nor  the  intention  of  the  parties.  Under  similar  circum- 
stfinces,  learned  counsel  would  doubtless  have  employed  other 
and  more  apt  language,  but  still  we  think  the  words  used  are 
sufficient  to  enable  the  court  to  read  the  contract  as  we  have  con- 
strued it,  and  thereby  get  not  only  near  to,  but  exactly  at,  the 
intention  of  the  parties."  ^"^ 

§170.     Partial  development  —  abandonment. 

A  partial  development  may  prevent  a  forfeiture  for  a  failure 
to  develop,  even  as  to  tlie  entire  premises.  Thus  where  a  lease 
was  for  twenty  years;  two  wells  to  l>e  drilled,  tlie  first  within 
the  first  year,  and  tlie  second  in  two  years ;  and  if  the  second 
produced  sufficient  gas  to  be  capable  of  use,  tlie  consideration 
in  full  for  such  well  to  be  a  certain  rental ;  if  tliere  was  delay  in 
the  completion  of  the  two  wells,  die  annual  rentals  were  to  be 
paid  and  accepted  in  full  consideration  for  the  delay;  and  the 
lessee  drilled  the  first  well,  but  not  the  second,  obtained  gas 
in  sufficient  quantity  to  use  it;  for  more  than  two  years  paid 
the  rental,  when  the  well  and  casing  were  plugged,  and  the 
"  rig  "  taken  do^\^l ;  and  tlie  lessee  never  drilled  the  second  well, 
nor  paid  the  lessor  anything  for  a  failure  to  do  so,  it  was  held 

100  Elk   Fork  Oil   and   Gas  Co.   v.  Jennings,  84  Fed.  Rep.  839. 


206  OIL    AND    GAS. 

that  these  facts  did  not  show  an  abandonment  of  the  lease.^^* 
But  where  the  lessee  was  to  complete  a  well  within  six  months, 
or  thereafter  within  sixty  days  remove  all  machinery  and  build- 
ings, in  which  event  the  lease  was  to  be  null  and  void,  unless 
further  prosecuted  after  the  first  well  was  drilled  —  it  was  held, 
after  the  first  well  was  drilled,  that  the  lease  was  avoided  by 
a  failure  to  further  operate  for  mining  purposes  for  a  period  of 
several  years."^  A  lessee  of  seventy-four  acres,  leased  on  a 
royalty  for  a  term  of  five  years,  and  as  much  longer  "  as  oil 
or  gas  was  found  in  paying  quantities,"  by  the  terms  of  the 
lease  was  required  to  complete  a  well  thereon  witliin  three 
months.  He  completed  tliis  well  on  time,  but  drilled  no  others, 
and  made  no  serious  effort  to  do  so  during  the  five  years,  al- 
though the  lessor  repeatedly  urged  him  to  do  so.  The  well 
drilled  was  a  small  producer,  not  paying  the  expense  of  operat- 
ing it.  After  the  expiration  of  the  term  of  five  years,  the  les- 
see applied  to  a  court  of  equity  to  enforce  the  lease  against  the 
lessor  and  those  to  whom  a  lease  had  been  given  after  the  ex- 
piration of  the  five  years ;  but  the  court  refused  to  do  so,  basing 
its  refusal  on  tlie  ground  that  the  plaintiff  had  not  complied 
witli  the  implied  condition  of  tlie  lease,  which  required  him  to 
fievelop  the  property  in  good  faitli.^^' 

gl71.     Lessee   draining  leased   premises   by   wells  on   adjoining 
territory. 

A  lessee  cannot  hold  the  leased  premises  and  drain  them  by 
sinking  oil  wells  on  adjoining  2>remises;  and  if  he  persist  in 

-1^  Ahrns  v.  Chartiers  Valley  Gas  m  Heintz  v.   Shortt,   149  Pa.   St. 

€o.,   18S  Pa.   St.  249;   41   Atl;  Rep.  286;  24  Atl.  Rep.  316. 

739.     See  Monfort   v.   Lanyon   Zinc  The   law   recognizes   a   distinction 

Co.   (Kan.)    72  Pac.  Rep.  783.  between  the  abandonment  of  opera- 

Where  no   work   was   commenced,  tion  under  an  oil  lease  and  an  inten- 

it  was  held  there  was  no  abandon-  tion   to   abandon   or   surrender   the 

ment  of  a  hundred  years'  lease  to  lease  itself.     Parish  Fork  Oil  Co.  v. 

tnine    coal,    even   though   the   lessee  Bridgewater    Gas    Co.,    51    W.    Va. 

Iiad  neither  paid  rent  nor  searched  583;  42  S.  E.  Rep.  655. 

for  coal.     Plummer  V.  Hillside  Coal  112  Barnsdall   v.    Boley,    119    Fed. 

and  Iron  Co.,   160  Pa.   St.  483;    34  Rep.  191. 
\V.  N.  C.  366;  28  Atl.  Kep.  853. 


FORFEITURE    OF    LEASE.  207 

such  conduct  he  will  forfeit  his  lease.  In  an  instance  of  this 
character,  or  at  least  where  there  was  danger  tliat  the  leased 
premises  would  be  drained  of  its  oil  by  wells  operated  on  ad- 
joining premises  by  the  lessee,  it  was  held  to  be  the  duty  of  the 
lessee  to  open  as  many  w^ells  on  the  leased  premises  as  was 
necessary  to  secure  the  common  advantage  of  the  lessor  and  him- 
self, and  to  prevent  the  loss  of  oil  under  the  lessor's  land  by 
drainage  into  the  adjoining  wells;  in  default  of  which  the  lease 
might  be  declared  forfeited."^ 

§172.     Lessee  draining  away  oil  by  sinking  wells  on  adjoining 
premises. 

But  if  the  lessee  has  complied  with  the  terms  of  his  lease,  the 
lessor  cannot  declare  a  forfeiture  on  the  ground  that  such  lessee 
has  leased  adjoining  territory  and  is  draining  his,  the  lessor's, 
premises  through  the  wells  upon  such  territory,  although  the 
conduct  of  the  lessee  may  inflict  upon  him  great  damages."* 

§173.     Inability  to  complete  work. —  Inclement  weather. 

The  lessee  cannot  always  urge  successfully  as  an  excuse  that 
the  weather  was  so  inclement  that  he  could  not  drill  the  wells 
within  the  time  fixed  by  tlie  lease,  or  operate  them  continuously 
after  they  were  drilled.  In  order  to  do  this  he  should  have 
inserted  in  the  lease  a  clause  preventing  a  forfeiture  because  of 
that  fact.""'  In  the  first  case  cited  the  lease  required  one  well 
to  be-  completed  within  five  months,  a  second  within  one  year,, 
and  a  third  within  two  years.  The  first  and  second  wells  wen^ 
completed  on  time ;  but  the  third  was  not,  although  before  the 
expiration  of  the  two  years  the  lessee  had  placed  timber  upon 
the  leased  premises  for  a  eomjilete  carpenter's  rig,  but  was  un- 

113  Kleppner  v.  Lemon,  170  Pa.  St.        Bridpewater  Oil  Co..  51  W.  Va.  58.'5 ; 
.^02;   38  W.  N.  C.  388;   35  Atl.  Hep.       42  S.  E.  Rep.  655. 

109;     Coffinberry    v.    Sun    Oil     Co.  us  Cryan    v.    Ridelsperger,    7    Pa- 

(Ohio)   67  N.  E.  Kep.  1069.  Cir.  Ct.  Rep.  473;  Kennedy  v.  Craw- 

114  Ohio  Oil  Co.  V.  Harris,  1  Ohio  ford,     138    Pa.    St.     561;     21     Atl- 
Dec.   157 ;   same   case   1   Ohio  N.   P.  Rep.   19. 

132.     See    Parish    Fork    Oil    Co.    v. 


208  OIL    AND    GAS. 

able  to  secure  workmen  to  build  tlie  rig.  The  failure  to  secure 
workmen  was  held  to  be  no  excuse,  and  on  trial  the  lease  was 
declared  forfeited.  This  was  a  nisi  [jrius  decision.  But  in  the 
State  where  this  decision  was  given  the  Supreme  Court  held  that 
if  the  lessee,  on  the  last  day  of  the  period  allowed,  in  good 
faith  entered  on  the  premises  and  began  o|>erations  preparatory 
to  drilling  a  well,  but  was  prevented  by  the  lessor  from  proceed- 
ing farther  (it  being  impossible  to  l)egin  the  well  on  time), 
there  was  no  forfeiture ;  ^^"  and  in  another  State  where  the 
lessee  was  not  able  to  complete  the  well  on  time,  because  the  ex- 
cessively muddy  condition  of  the  roads  rendered  it  impossible 
to  get  the  necessaiy  machinery  on  the  premises  in  time,  it  was 
held  that  there  was  no  forfeiture.^^'  Where  an  excuse  was  set 
up  by  lessees  as  a  defense  that  they  were  working  other  leases 
and  were  ''  approaching  these  lands  as  fast  as  they  could,  and 
that  they  could  not  work  these  lands  for  want  of  railroad  facili- 
ties," it  was  held  that  this  was  an  insufficient  excuse.  "  Coun- 
sel's contention  is,"  said  the  court,  "  that  the  enterprise  could 
not  be  abandoned  unless  it  had  been  begun.  They  insist  that 
the  meaning  of  the  contract  is  that  the  lease  continues  to  subsist 
for  tlie  full  term  of  twenty  years,  though  not  a  single  thing  is 
done  under  it  on  the  land,  and  even  though  no  intention  exists 
on  the  part  of  the  lessees  to  do  anything  under  the  tenns  thereof. 
We  think  it  quite  clear  that  such  was  not  the  intent  of  the 
parties  as  gathered  from  the  lease  itself.  Xo  reason  is  \ier- 
ceived  why  it  would  not  l>e  as  injurious  to  the  lessors  to  fail  to 
commence  operating  the  mines  and  quarries  for  twelve  months 
as  to  cease  operating  them,  after  beginning,  for  a  period  of 
twelve  months."  ^^^ 

116  Henderson  v.  Ferrell.  183  Pa.  nsWoodard  v.  Mitchell,  140  Ind. 
St.  547;  38  Atl.  Rep.  1018.  406;  .39  N.  E.  Rep.  437. 

117  Fleming  Oil  and  Gas  Co.  v.  See  where  a  failure  to  begin  for 
South  Penn.  Oil  Co.,  37  W,  Va.  645;  five  and  a  half  years  to  develop  a 
17  S.  E.  Rep.  203.  See  Forney  v.  mine  was  held  not  to  work  a  for- 
ward (Tex.  Civ.  App.),  62  S.  W.  feiture.  Baumgardner  a'.  Browning, 
Rep.  108;  Lane  v.  Gordon.  18  N.  Y.  12  Ohio  Cir.  Ct.  Rep.  73;  5  Ohio  Cir. 
App.  Div.  438;  46  N.  Y.  Supp.  57.  Dec.  394. 


FORFEITURE    OF    LEASE.  209 

§174.     Mortgage  of  leasehold  may  work  a  forfeiture. 

A  lease  may  prohibit  the  lessee  placing  a  mortgage  on  the 
leasehold  under  the  penalty  of  its  forfeiture  if  he  do  so.  And 
if  the  lease  prohibit,  under  the  penalty  of  forfeiture,  a  transfer 
of  it  by  the  lessee,  the  mortgaging  of  the  leasehold  by  siicli 
lessee,  followed  by  a  sale  thereunder,  will  have  the  same  effect 
as  a  transfer  of  the  lease.  Where  in  such  an  instance,  the 
leasehold  was  sold  under  the  mortgage  at  a  constable's  sale,  it 
was  said :  "  The  mortgage  uix)n  the  leasehold  through  which 
he  claims,  fell  with  the  forfeiture.  The  creation  of  the  mort- 
gage was  prohibited  in  substance  by  tlie  lease,  and  was  a  ground 
of  forfeiture.  The  lessee,  having  no  right  to  assign  his  lease, 
could  not  do  so  indirectly  by  mortgaging  it.  As  against  the 
landlord  the  mortgage  was  a  nullity,  and  it  cannot  be  success- 
fully set  up  as  against  the  title  acquired  through  the  forfeiture 
and  constable's  sale."  ^^^ 

§175.     When  work  must  be  completed. 

Xot  only  must  tlie  work  l>e  commenced  within  the  time  speci- 
fied, but  it  must  be  completed  within  the  time  limited,  in  order 
to  avoid  a  forfeiture.  But  if  the  work  has  teen  completed  in 
time,  a  forfeiture  will  not  l>e  declared  simply  because  it  has  not 
been  completed  in  the  order  specified  in  the  lease.  Thus  where 
two  wells  were  to  be  completed  the  first  six  months  of  the 
second  year,  and  two  more  the  second  six  months  of  such  year, 
a  completion  of  four  wells  within  that  year  was  considered  to  be 
such  a  substantial  compliance  with  the  lease  as  to  defeat  a 
forfeiture.^"''  Where  the  lease  required  a  well  to  be  completed 
within  three  months,  and  all  wells  within  eighteen  months,  it 
was  held  that  the  court  would  not  direct  how  the  lessee  should 
work  the  premises,  or  how  many  wells  should  be  sunk  ;■  and  that 
the  lessor  could  insist  on  a  forfeiture  simply  because  the  lessee 
had  not  been  suflSciently  active  in  developing  the  property.^'^ 

119  Becker  v.  Werner,  98  Pa.  St.  121  Baldwin  v.  Ohio  Oil  Co.,  1.3 
555.  Ohio    Cir.    Ct.    Hep.    519;     7    Ohio 

120  Thomas  v.  Kirkbridge,  15  Ohio  Dec.  50. 
Cir.  Ct.  Rep.  294;  8  Ohio  Dec.  181. 


210  OIL    AND    GAS. 

Where  a  well  was  to  be  commenced  witliin  sixty  days  and  com- 
pleted within  five  months,  a  failure  to  complete  a  well  within 
five  months  tliat  was  begun  within  the  sixty  days  was  held  to 
work  a  forfeiture  of  the  lease.^"^ 

§176.     Excavating  for  oil  means  bringing  it  to  the  surface. 

Where  a  lease  provides  for  tlie  diligent  prosecution  of  the  un- 
dertaking to  success  or  abandonment  and  for  a  forfeiture  if  oil 
be  not  excavated  in  paying  quantities  on  or  before  a  given  date^ 
the  oil  must  be  raised  to  the  surface,  and  merely  finding  it  in 
the  earth  witliin  the  time  given  will  not  prevent  a  forfeiture,  if 
it  be  not  pumi>ed  or  rise  to  the  surface  of  tlie  earth. ^'^ 

§177.     Failure  to  pay  royalty  or  report  them. 

A  mere  failure  to  pay  royalties  due  under  the  lease  will  not 
give  the  lessor  sufficient  ground  to  declare  a  forfeiture,  unless 
by  the  express  terms  of  the  lease  he  is  given  that  right  and 
power. ^^*  But  a  failure  to  either  develop  the  leased  premises 
or  pay  rent,  within  the  time  named,  may  be  sufficient  evidence 
from  which  an  inference  of  abandonment  may  be  drawu.^^^  If 
the  lessor  is  to  receive  a  certain  portion  of  "  all  of  the  profits  '^ 
realized  from  oil  or  gas  found  on  the  premises,  that  means  the 
net  profits  ;  and  he  cannot  declare  a  forfeiture  for  neglect  of  the 
lessee  to  account  at  a  time  when  the  proper  expenses  of  the  lease 
exceed  the  receipts.^"®     A  lease  provided  for  a  yearly  rental  of 

122  Cleminger  v.  Baden  Gas  Co.,  Pa.  St.  83;  47  All.  Rep.  927;  Barn- 
159  Pa.  St.  16;  33  W.  N.  C.  480;  hart  v.  Lockwood,  152  Pa.  St.  82; 
28  Atl.  Rep.  293.  25  Atl.  Rep.  237. 

123  Kennedy  v.  Crawford,  138  Pa.  120  Potterie   Gas   Co.    v.    Potterie, 
St.  561;  21  Atl.  Rep.  19.  See  Parish  179  Pa.  St.  68;   36  Atl.  Rep.  232. 
Fork  Oil  Co.  v.  Bridgewater  Oil  Co.,  In  such  an  instance,  a  stipulation 
51  W.  Va.  583;  42  S.  E.  Rep.  655.  that  the  lessee  should  "  use  all  econ- 

124  Wakefield  v.  Sunday  Lake,  omy  in  the  conduct  and  management 
etc.,  Co.,  85  j\Iich.  605;  49  N.  W.  of  the  mining  enterprise,"  is  too  un- 
Rep.  135;  Ammons  v.  South  Penn.  certain  to  be  recognized  as  a  condi- 
Oil  Co.,  47  W.  Va.  610;  35  S.  E.  tion,  for  the  breach  of  which  a  for- 
Rep.  1004.  See  Edwards  v.  Tola  Gas  feiture  may  be  enacted.  Benavides 
Co.,  65  Kan.  — ;   69  Pac.  Rep.  350.  v.  Hunt,  79  Tex.  383;  15  S.  W.  Rep. 

125  Marshall  v.  Forest  Oil  Co.,  198  396. 


FORFEITURE    OF    LEASE.  211 

:foiir  hundred  dollars,  payable  quarterly,  the  amount  to  be  de- 
ducted from  royalties  when  in  excess  of  that  sum.  The  royal- 
ties were  payable  quarterly  on  ore  as  sold  and  delivered.  The 
lease  also  provided  that  if  payments  were  not  made  at  the  time 
specified,  tlie  lease  should  be  void.  It  was  held  that  a  failure 
to  fully  pay  all  royalties  on  ore  sold  and  delivered  at  the  end  of 
each  quarter  year  worked  a  forfeiture  of  tlie  lease.^"^ 

§178.     Payment  of  rent  will  not  prevent  forfeiture  for  neglect  to 
develop. 

Payment  of  tlie  rent  will  not  always  prevent  a  forfeiture  for 
a  neglect  or  failure  to  develop,  or  for  a  neglect  to  operate  after 
development.  Thus  where  the  lease  was  for  two  years,  and  as. 
much  longer  as  oil  was  found  in  paying  quantities ;  and  it  pro- 
vided for  the  commencement  of  a  well  in  thirty  days,  and 
its  completion  in  ninety  days,  or,  in  default,  the  payment  of  an 
annual  rental  of  sixty  dollars  from  the  time  named  for  the  com- 
pletion of  the  well  until  it  should  in  fact,  be  completed ;  it  was 
held  that  the  lessee  could  not  keep  the  lease  alive  after  the  two 
year  limit  by  the  payment  of  an  annual  rental  merely.^"^  To 
hold  that  he  could  do  so,  was  considered  by  the  court  to  convert 
the  lease  into  a  perpetual  option  to  drill  for  oil  and  gas,  when 
the  apparent  purpose  of  the  lessor  was  to  compel  the  develop- 
ment of  his  land  within  the  period  of  three  years."  ^'^  If  a 
lease  provide  that  it  shall  be  forfeited  for  a  neglect  to  pay  any  of 


127  Boys  V.   Robinson    (N.  J.  L.),  Rep.  1004;  Boys  v.  Robinson  (N.  J. 
38  Ail.  Rep.  813.  L.),    38    Atl.    Rep.    813;    American 

The  amount  of  deposit  made  by  a  Window  Glass  Co.  v.  Williams  (Ind. 

tenant   to   secure  the  observance  of  App.),  66  N.  E.  Rep.  912. 

the  conditions  of  a  lease,  cannot  be  129  Tne  Appellate  Court  cited  Hol- 

applied  to  the  payment  of  rent,  so  lingsworth  v.  Fry,  4  Dall.  345,  and 

as  to  avoid  a   forfeiture,   otherwise  Packer   v.   Noble,    103   Pa.   St.    188. 

than  in  conformity  to  the  conditions  See  National   Oil,   etc.,   Co.   v.   Teel 

of   the   deposit.     Rosenquist   v.    Ca-  (Tex.  Civ.  App) ,  67  S.  W.  Rep.  545; 

nary,  15  N.  Y.  Misc.  148;  36  N.  Y.  Gadbury    v.     Ohio,     etc.,     Gas     Co. 

Supp.  979 ;  72  N.  Y.  St.  Rep.  422.  (Ind.),    67    N.    E.    Rep.    259;    Gad- 

128  Western  Pennsylvania  Gas  Co.  bury   v.    Ohio,    etc..    Gas   Co.    (Ind. 
V.  George,   161   Pa.   St.  47;   28  Atl.  App.),  65  N.  E.  Rep.  289. 


212  OIL    AND    GAS. 

the  payments  required  to  be  made,  a  whole  payment  is  meant 
and  not  a  balance  on  a  running  account."'' 

§179.     Must  pay  rent  although  no  oil  on  premises. 

If  the  lease  require  the  lessee  to  complete  an  oil  well  witliin 
a  certain  time,  or  thereafter  pay  a  certain  sum  annually  until 
a  well  is  completed,  it  is  no  excuse  for  not  drilling  the  well 
that  the  premises  were  worthless  for  oil,  and  for  tliat  reason  a 
well  was  never  completed.  In  passing  on  the  case,  the  court 
said : 

"  I  do  not  think,  however,  that  the  fact  of  there  being  no  oil 
or  gas  on  the  land,  no  matter  how  soon  foimd  out,  could  avail  the 
defendant.  The  lessors  were  entitled  to  insist  that  this  fact 
should  be  made  manifest  in  the  very  manner  agreed  upon,  or  to 
demand  the  sum  stipulated  to  be  paid  for  delay.  The  covenant 
on  this  subject  is  absolute  and  unqualified,  and  provides  for  the 
doing  of  nothing  that  is  illegal  and  improbable.  If  a  clear, 
positive  covenant,  like  the  one  before  us,  to  do  a  lawful  thing 
or  pay  a  certain  sum  of  money  for  not  doing  it,  can  be  evaded 
by  showing  that  the  performance  of  the  act  did  not  benefit  the 
covenantee,  it  is  hard  to  tell  where  we  could  pro|>erly  stop  in 
applying  the  rule.  We  might  presently  reach  a  point  where  an 
action  for  liquidated  damages  for  breach  of  an  agreement  not 
to  engage  in  a  certain  business  within  designated  limits,  might 
be  defeated  by  proving  that  everyone  conducting  the  same  busi- 
ness in  the  neighborhood  had  been  losing  money,  and,  for  reasons 
shown,  would  probably  continue  to  do  so.  .  .  .  That  the 
contract  may  have  proved  a  losing  one  to  the  lessee  or  his  as- 
signee, the  defendant,  is  neither  here  nor  there.  To  quote  the 
popular  saying,  '  a  contract  is  a  contract '  and  no  sufficient  reason 
appears  why  the  one  under  consideration  should  not  be  en- 
forced." "^ 


1-"  Westmoreland,  etc.,  Gas  Co.  v.  i3i  Springer  v.  National  Gas  Co., 

i)eWitt,    130   Pa.    St.   235;    18    Atl.       145  Pa.  St.  430;  22  Atl.  Rep.  986. 
Rep.  724;  5  L.  R.  A.  731. 


FOKFEITURE    OF    LEASE.  213 

§180.     Lessee  must  pay  past  rents. —  Damages. 

A  forfeiture  declared  by  the  lessor  does  not  release  the  lessee 
from  the  payment  of  rents  or  royalties  or  other  sums  that  had 
matured  at  the  time  of  the  declaration  of  forfeiture.  And  the 
same  is  true  in  case  of  a  surrender.  "  The  lessees  had  the  right 
to  surrender  the  lease  at  any  time,  but  such  surrender  was  not 
a  payment  of  what  they  then  owed."  In  the  case  from  which 
this  quotation  has  just  been  made  the  lease  provided  that  the 
lessee  should  commence  a  ^vell  within  one  month  from  the  date 
of  tlie  lease,  or  in  lieu  thereof,  pay  the  lessor  two  dollars  per 
day  until  it  was  commenced,  or  surrender  the  lease.  It  was 
held  that  upon  sun-ender  of  the  lease  that  the  payments  contem- 
plated were  to  be  made  up  to  the  time  of  the  surrender ; 
(although  not  as  a  condition  of  the  surrender),  and,  when  so 
made,  they  should  be  in  full  satisfaction  for  any  damages  by 
reason  of  the  failure  of  the  lessee  to  perform  the  conditions  of 
the  lease."^ 

§181.     Lessor  consenting  to  abandonment. 

If  tlie  lessor  consent  to  the  abandonment  by  the  lessee,  he 
cannot  thereafter  insist  that  tlie  lessee  must  pay  the  penalty  or 
the  rent  stipulated  for  in  the  lease.  Such  was  decided  to  be  the 
case  where  a  test  well  was  drilled,  which  proved  to  be  a  dry 
hole,  yielding  neither  gas  nor  oil,  the  lessee  openly  and  publicly 
removing  the  machinery  from  the  premises,  abandoning  all 
further  operations  on  the  premises ;  and  the  lessor,  knowing  that 
the  well  was  a  dry  hole  and  that  the  premises  had  been  aban- 
doned, making  no  claim  upon  the  lessor  for  any  sum  of  money 
due  under  the  lease  for  several  years,  the  lessee  waiving  a  writ- 
ten notice  of  forfeiture,  and  the  lessor  subsequently  granting  to 
another  party  an  option  to  buy  all  the  coal  underlying  the  sur- 
face of  the  premises. ^■''^ 

132  Bettman    v.     Shadle,    22    Ind.  i33  May    v.     Hazelwood     Oil     Co., 

App.   542;    53  N.  E.  Rep.  662.     See  152   Pa.  St.  518;   25  Atl.   Rep.  565. 

also  Woodland  Oil  Co.  v.  Crawford,  See    Stage    v.    Boyer,    183    Pa.    St. 

55  Ohio  St.  161;   36  Ohio  Wkly.  L.  560;   38  Atl.  Rep.  1035. 
Bull.  231;   44  N.  E.  Rep.   1093;   34 
L.  R.  A.  62. 


214  OIL    AND    GAS. 

§182.     Estoppel  of  lessor. 

A  lessor  by  his  conduct  may  estop  himself  to  declare  a  for- 
feiture. Such  an  instance  is  where  a  lessee  is  given  to  under- 
stand, before  forfeiture  incurred,  that  if  a  partieular  covenant 
in  the  lease  is  not  performed  on  time  there  will  l)c  no  forfeiture 
declared  or  enforced.  Perhaps  this  might  be  put  on  the  ground 
of  waiver,  although  that  term  more  properly  applies  to  instances 
where  the  forfeiture  has  been  incurred  before  the  acts  of 
waiver  have  taken  place,  yet  preceding  the  declaration  of  for- 
feiture. Any  act  of  the  lessor  that  lulls  the  activity  of  the 
lessee,  and  upon  which  he  has  a  right  to  rely,  tliat  takes  place  be- 
fore a  forfeiture  is  incurred,  and  which  would  not  have  been 
jiennitted  by  the  lessee  without  such  act  of  the  lessor,  may  well 
be  deemed  to  estop  such  lessor  from  insisting  upon  a  forfeiture 
for  a  non-performance  of  the  particular  covenant  of  which  lack 
of  performance  is  complained  and  insisted  upon  by  the  lessor  as 
cause  for  a  forfeiture.  It  would  be  inequitable  to  permit  a  for- 
feiture under  such  circumstances.^^*  But  an  estoppel  to  assert 
one  breach  cannot  be  made  to  apply  to  another ;  as,  for  instance, 
if  there  is  an  estoppel  to  insist  upon  a  forfeiture  to  commence 
a  well  within  sixty  days,  it  cannot  be  used  to  prevent  a  forfeiture 
for  having  failed  to  complete  the  well  within  five  months.^^^  An 
estoppel  may  also  arise  where  the  lessor,  after  forfeiture  in- 
curred, permits  the  lessee  to  exjiend  considerable,  or  at  least 
large,  sums  of  money  in  developing  the  premises,  knowing,  or 
at  least  having  good  reasons  to  believe,  that  the  lessee  does  not 
think  a  forfeiture  will  be  enforced. ^^°  This  is  particularly  true 
of  the  payment  of  rent  on  the  precise  day  when  due,  which  in 
point  of  time  is  not  always  regarded  as  of  the  essence  of  the 
contract.  "  There  is  a  wide  distinction  even  in  equity  between 
forfeiture  for  failure  of  punctual  payment  of  money,"  said  the 
court  in  one  case,  "  where  time  is  of  the  essence  of  the  con- 
tract and  where  it  is  not.  If  parties  choose  to  stipulate  for 
matters  as  essential,  it  is  not  for  courts  to  say  they  are  not  so, 

i34Steiner  v.  Marks.   172  Pa.  St.       159  Pa.  St.  16;  28  Atl.  Rep.  293. 
400;  33  Atl.  Rep.  69.5.  iseDiiffield  v.  Michaels,   102  Fed. 

135  Cleminger   v.    P)aden   Gas   Co.,       Rep.  20. 


FORFEITURE    OF    LEASE.  215 

l)ut.  ill  the  absence  of  a  clear  agreement  for  materiality,  courts 
will  look  into  the  nature  of  the  transaction  and  be  governed  by 
the  real  bearing  of  the  facts  upon  the  intentions  and  rights  of 
the  parties."  '"  If  the  lessor  has  prevented  tlie  lessee  complet- 
ing a  well  in  time,  he  is  estopped  to  declare  a  forfeiture  for  a 
failure  to  keep  the  covenant  of  the  lease  in  that  respect.''' 

§183.     Demand  for  compliance  with  lease. 

If  the  lessee  has  made  default,  unless  the  lease  provide  other- 
wise, the  lessor  is  not  required  to  make  a  demand  on  him  to 
comply  with  the  lease,  especially  if  he,  and  not  the  lessee,  is  in 
possession.^'"  This  is  especially  true  if  the  lease  authorizes  in 
terms  the  lessor  to  re-enter  without  demand  or  notice."'' 

§184.     Abandonment  a  question  of  intention. 

Abandonment  of  a  lease  is  a  question  of  intention,  and  is  to 
be  determined  only  on  an  investigation  of  the  facts.  Mere 
lapse  of  time  may  not  be  sufficient  to  detennine  that  question, 
but  it  may  be  "  aided  and  strengthened  by  the  acts  and  declara- 
tions of  the  tenant  evincing  the  intention  permanently  to 
abandon."  "' 

§185.     Forfeiture  a  question  for  jury. 

Usually  whether  or  not  there  has  been  a  forfeiture  or  aban- 
donment "^is  a  question  for  the  jurs^  Thus  a  lessee  was  to  com- 
mence drilling  a  Avell  within  ninety  days  from  the  date  of  the 
lease,  and  '^  prosecute  said  drilling  with  due  diligence  t.o 
success  or  abandonment";  and  it  was  jirovided  that  if  oil 
or  gas  be  not  pumped  or  excavated  in  ])aying  quantities  on  or 
before  a  certain  date,  then  the  lease  was  to  be  null  and  void ; 
and  the  lessee  began  the  work  on  time  and  prosecuted  it  contin- 

137  Lynch   V.   Versailles   Fuel   Gas  i39  Maxwell    v.    Todd,    112    N.    C. 

Co     165  Pa.   St.   518;   30  Atl.  Rep.  677;   16  S.  E.  Rep.  926. 

084      See    Northwestern   Ohio,    etc.,  i40  Island  Coal  Co.  v.  Combs,  152 

Gas  Co.  V.  Brownin-    15  Ohio  Cir.  Ind.   379;   53  N.  E.  Rep.  452. 

Ct   Rep.  84;  8  Ohio  Cir.  Dec.  188.  i4i  Rams   v.   Tanner,   66   Pa.    St. 

i38Stahl   V.   Van   Vleek,    53   Ohio  297:  Parish  Fork  Oil  Co.  v.  Bridge- 

St    136;  41  N.  E.  Rep.  35.  water   Gas  Co..   51    ^^.   Va.    oS3;    4- 

S.  E.  Rep.  655. 


216  on,    AND    GAS. 

uously  until  five  months  after  the  (hite  in  the  lease  set  for 
its  forfeiture,  when  he  withdrew  the  eiisinij:  and  left  the  prem- 
ises for  five  months  longer.  ITe  ehiinied  tliat  he  had  found  oil  in 
])aying  quantities,  but  admitted  he  had  never  pum})ed  any  frdui 
the  well.  In  an  action  involving  the  validity  of  the  lease,  it  was 
held  that  the  lessee  had  no  discretion  to  delay  operations  indefi- 
nitely, provided  he  produced  oil  or  gas  in  paying  (pumtities  by 
the  date  fixed,  but  he  was  bound  to  exercise  diligence  dnring  the 
whole  period;  and  it  was  a  question  for  the  jury  whether  a 
forfeit  had  been  incurred  because  of  a  lack  of  due  diligence.^'*" 
A  lease  of  certain  piremises  provided  that  if  no  well  had  been 
begun  and  prosecuted  witli  due  diligence  within  four  months 
it  should  be  void.  It  was  held  not  error  to  refuse  to  instruct 
the  jury  that  if  the  lessee,  before  the  tenriination  of  the  lease, 
hauled  lumber  on  the  premises  with  the  purpose  to  begin  the 
well,  such  act  was  a  beginning  of  the  well  within  the  terms  of 
the  lease ;  for  the  reason  as  tJie  lessee  had  hauled  lumber  on  the 
premises  the  day  before  the  lease  expired,  it  was  not  for  the 
court  to  determine  the  question  of  forfeiture  as  a  matt-er  of  law, 
but  the  question  was  one  for  the  jury  to  decide,  in  connection 
with  the  testimony  as  to  the  general  understanding  among  per- 
sons engaged  in  boring  wells  as  to  when  a  well  was  begun. ^^^  So 
where,  under  a  similar  lease,  the  lessee,  within  the  time  drilling 
on  the  well  was  to  be  begun,  commenced  the  construction  of  nec- 
essary machinery  on  the  premises,  and  was  engaged  in  seeking 
for  contractors  to  do  the  work,  the  question  whether  the  lessee  had 
used  due  diligence  in  constructing  the  well  was  considered  one 
for  the  JLiry.^**  Whether  there  has  been  an  abandonment  by  the 
lessee  is  also  a  question  for  the  jury."^    If  there  be  no  dispute  as 

142  Kennedy  V.  Crawford,  138  Pa.  App.),  62  S.  W.  Rep.  108.  See 
St.  561;  27  W.  N.  C.  306;  21  Atl.  Fleming  Oil  and  Gas  Co.  v.  South 
Pvep.  19;  Rynd  v.  Rynd  Farm  Oil  Penn.  Oil  Co.,  37  W.  Va.  645;  17 
Co.,  63  Pa.  St.  397 ;   Karns  v.  Tan-  S.  E.  Rep.  203. 

ner,    66    Pa.    St.    297;    Wesling    v.  i"  Lane  v.  Gordon,  18  N.  Y.  App. 

Kroll,  78  Wis.  036;   47  N.  W.  Rep.  Div.  438;  46  N.  Y.  Supp.  57;  Hein- 

943;   Nelson  v.  Eachel,   158  Pa.  St.  ouer  v.  Jones,   159  Pa.   St.  228;   28 

372;  33  W.  N.  C.  281;  27  Atl.  Rep.  Atl.  Rep.  228. 

1103.  i45Bartley    v.    Phillips,    165    Pa. 

143  Forney    v.     Ward     (Tex.    Civ.  St.  325;  30  Atl.  Rep.  842. 


91' 
FORFEIT URP:    OF    LEASE. 


to  the  acta  done,  and  none  .-ith  reference  to  the  inference  to  be 
drawn  from  them,  it  is  error  to  submit  the  question  of  forfeiture 
to  the  jury. 
§186.    Suit  to  cancel  lease  for  non-development  of  territory. 

A  court  of  equity  has  full  power  U,  entertain  a  suit  to  cancel 
a  lease  for  neglect  «  refusal  of  the  lessee  t»  develop  tlie  preuuses 
leased      Thus  where  the  lease  was  for  twenty  years,  or  so  long 
as  oil  and  gas  should  be  found  in  payiug  quantities;  and  seven 
vears  had  elapsed  since  the  time  fixed  for  drilling  a  test  well,  it 
"was  held  that  a  court  of  equity  would  cancel  the  lease   t^ie  pre- 
sumption being  that  the  lessee  had  abandoned  it.-     But  if  the 
lessor  is  in  actual  possession,  and  the  terms  of  the  lease  are 
such  as  to  render  the  lease  void  if  any  particular  covenant  is 
not  kept,  then  the  lessor  cannot  maintain  an  action  in  equity  to 
cancel  the  lease,  although  he  may  sue  in  assumpsit  for  arreai-s  of 
royalty,  or,  possibly  in  ejectment.-     Unusual  delay  will  work 
a  forfeiture  of  the  right  to  maintain  a  suit  to  cancel  a  lease, 
where  the  ground  of  forfeiture  is  a  failure  to  pay  royalties. 
In  an  action  to  cancel  the  lease  for  non-development  or  failure 
to  carry  on  mining  oix-rations,  it  is  proper  to  show  tliat  the 
lessee  had  failed  to  fun.ish  ,>eriodical  statements  of  the  oil  pro- 
duced, as  required  by  the  contract;  that  he  is  insolvent,  and 
creditors  are  seizing  the  mining  apparatus,  and  that  the  property 
is  likely  to  be  destroyed  or  injured  by  discontented  and  unpaid 

..,McK„igKt   V.    Kreut.    51    Pa.       Tex.  Civ.  App.  ^'^-f^^^'^J^Z 
"  429-    Edwards  v.   lola   Uas   ^o.,  u^ 

feiture  incurred.    Anierioan  Window  dall   v.   Mey,    U^   ^f'^^lJ^^; 

Glas.  Co.  V.  Williams   (Ind.  App.).  Pa"sh  Folk  0,1  Co.  i.  End 

66  N.  E.  Kep.  912 ;  Gadbnry  v.  Oli.o,  0,1   Co.,  »1    «  .  Va^  583 ,4 

^       ,T   J  ^     r-  XT    V    Rpn  Rep     655;    Gadbury    v.    unio,    etc., 

etc.,  Gas  Co.     Ind.),  Qi   N.  L.  Kep.  ^^p.    u     ,  j 

man  v   Shadle.  22  Ind.  App.  542;  53  1-  ;    27    Atl.   Rep.    5^«^ 

N.  E.  Rep.  662 ;  Cowan  v.  Bra.lfovd  was  twelve^  y^ar.     S^   Co.     .   N 

Iron  Co..  83  Va.  547;   3  S.  E.  Rep.  ^^   ^t-,  Co.,   o-  ^^  .  Va. 

120;  Southern  Oil  Co.  v.  Wilson,  22  E.  Rep.  128. 


218  OIL    AND    GAS. 

workmen.^^"  Ejectment  lies  at  tlie  instance  of  tlie  lessor  or  his 
grantee  to  recover  possession,  without  making  any  re-entry,  and 
Avithout  demanding  the  rent  or  royalties  due  and  unpaid.'"' 
vSo  will  a  suit  to  quiet  title.^^'  The  lessee  Ciinnot  stay  the  for- 
feiture proceedings,  at  least  after  notice  of  forfeiture  given,  by 
an  appeal  to  a  provision  in  the  lease  whereby  certain  questions 
Avere  to  be  submitted  to  arbitration."^  If  the  premises  in  part 
have  been  developed,  the  suit  cannot  be  maintained  for  the  for- 
feiture of  tlie  entire  lease,  but  must  be  for  damages."*  Where 
the  time  of  the  payment  of  the  rental  is  not  a  part  of  the 
essence  of  the  lease,  equity  may  excuse  default  in  its  payment, 
and  will  not  declare  a  forfeiture  and  cancellation  of  the  lease,  if 
it  would  be  inequitable  so  to  do."^ 

§187.     Relief  from  forfeiture. 

Equity  has  power  to  grant  relief  from  a  forfeiture  incurred 
where  tlie  lessee  has  not  in  fact  been  guilty  of  any  act  of  neglect, 
although  he  has  not  carried  out  the  provisions  of  the  lease  to 
their  full  extent."*'  Such  was  the  case  of  the  failure  to  deliver 
the  lessor  his  share  of  oil  where  there  was  such  an  extraordinary 
and  unexpected  flow  as  to  make  a  delivery  impracticable.  If  it 
would  be  unconscionable  to  allow  a  forfeiture  to  be  enforced, 
a  court  of  equity  will  grant  relief  against  such  forfeiture. '^^ 
If  a  forfeiture  for  non-payment  of  money,  or  for  failure  to  per- 
form any  other  act,  will  admit  of  accurate  and  full  compen- 
sation, and  is  provided  as  a  mere  penalty  with  a  view  to  enforce 

150  Sunday  Lake  Mining  Co.  v.  is-*  Harness  v.  Eastern  Oil  Co.,  49 
Wakefield,  72  Wis.  204;  39  N.  W.  W.  Va.  232;  38  S.  E.  Rep.  662. 
Rep.  13(ik  In  this  case  it  was  also  Suit  to  cancel  so  much  of  the  lease 
held  that  a  court  having  jurisdic-  as  pertains  to  the  undeveloped 
tion  of  the  parties  could  grant  re-  premises  will  lie.  Coffinberry  v.  Sun 
lief  from  a  forfeiture,  though  the  Oil  Co.  (Ohio)  67  N.  E.  Rep.  1069. 
mines  were  situated  in  another  iss  Edwards  v.  lola  Gas  Co.,  65 
State,  and  that  the  court  could  re-  Kan.  —  ;  69  Pac.  Rep.  350. 

store  the  possession  of  them.  isg  Edwards   v.    Tola    Gas   Co.,    65 

151  Boys  V.  Robinson    (N.  J.  L.),       Kan.  — ;   69  Pac.  Rep.   350. 

38  Atl.  Rep.  813.  ist  Thompson  v.  Christie,  138  Pa. 

152  Island  Coal  Co.  v.  Combs,  152  St.  230;  20  Atl.  Rep.  934;  11  L. 
Tnd.  379 ;   53  N.  E.  Rep*'  452.  R.  A.  236. 

153  Acme    Coal    Co.    v.    Stroud,    5 
Lack.  Leg.  News   (Pa.)    169. 


FOBFEITUKE    OF    LEASE.  21 1> 

a  performance  of  another  and  principal  obligation,  a  court  of 
equity  will  gi'ant  relief  against  it,  and  will  not  permit  it  to 
be  used  for  a  different  and  inequitable  purpose.  Thus  a  lease 
provided  for  rent  payable  for  delay  in  drilling  a  well ;  but  as 
no  time  was  specified  for  the  payment  of  rent,  it  fell  due  by 
operation  of  law  at  the  end  of  each  year.  For  several  years, 
instead  of  drilling  a  well,  the  lessee  paid  the  rent.  He  then 
began  drilling  a  well,  and  at  great  expense  obtained  oil  in  pay- 
ing quantities.  By  oversight  the  lessee  failed  to  pay  an  annual 
rent  when  it  fell  due ;  and  six  days  after  default  the  lessor 
notified  him  to  remove  his  machinery,  and  the  next  day  declared 
a  forfeiture.  During  these  six  days  the  lessee  spent  consid- 
erable money  on  the  leased  premises  in  their  development.  The 
court  considered  the  lessee's  action  lacked  that  promptness  that 
was  essential  to  declare  a  forfeiture,  that  his  action  was  uncon- 
scionable, and  that  a  forfeiture  could  not  l>e  enforced. ^^^  If  the 
principal  thing  is  to  sink  a  well,  then  relief  in  equity  will  not  be 
given  upon  the  tender  of  th.e  periodical  and  unpaid  rental,  where 
neglect  to  sink  the  well  cannot  be  compensated  for  in  damages. ^^^ 
Relief  can  be  afforded  by  a  court  having  jurisdiction  of  the 
parties,  although  the  premises  lie  in  another  State  ;  and  the  court 
can  restore  possession  of  them  to  the  lessee.^*"^  If  the  time  of 
payment  of  the  rental  is  not  in  express  tei*ms  or  necessary  impli- 
cation made  the  essence  of  the  lease,  equity  may  excuse  a  default 
in  payment,  and  will  not  declare  a  forfeiture  and  cancellation 
of  it  in  a  case  where  it  would  be  inequitable  and  unoonscion- 
able.^'^ 

§188.     Time  to  avoid  forfeiture. 

Usually  courts  will  give  some  time  after  the  date  of  forfeiture 
fixed  in  the  lease  to  perfonn  the  covenant  on  which  the  forfeit- 

158  Lynch   v.   Versailles   Fuel   Gas  isa  Hukill    v.    Guffey,    37   W.   Va. 

Co.,   16.5  Pa.   St.  518;   30  Atl.  Rep.  425;  16  S.  E.  Rep.  544. 

984.     Such  would  be  the  case  where  iso  Sunday    Lake    Mining    Co.    v. 

the  lessor   entered   for  a   failure  to  Wakefield,   72   Wis.  204;    39  N.   W. 

pay  rent  on  time,  when  the  payment  Rep.   136. 

was  hindered  by  his  acts.     Young  v.  lei  Edwards   v.    lola    Gas   Co.,   65 

Ellis,  91  Va.  297;  21  Atl.  Rep.  480.  Kan.  — ;  69  Pac.  Rep.  350. 


220  OIL    AND    GAS. 

ure  depends.  Thus  where  a  lease  provided  for  the  drilling  of 
wells  within  a  stated  time,  or  payment  of  a  yearly  sura  in  ad- 
vance, it  was  held  that  the  lessor  could  not  declare  a  forfeiture 
immediately  at  the  termination  (if  a  year  for  which  such  pay- 
ment had  heen  made  in,  because  no  wells  had  been  drilled,  even 
tliough  he  had  the  right  to  refuse  payment  for  a  succeeding 
year ;  for  the  lessee  had  a  right  to  a  reasonable  time  after  the 
expiration  of  the  year  paid  for  to  drill  a  well  and  operate  the 
premises.^""  So,  in  a  case  of  limitation.  Thus  where  a  lease 
was  given  for  five  years  and  as  much  longer  as  gas  and  oil  was 
found  in  paying  (luantities,  on  the  failure  of  a  well  which  had 
produced  gas  in  paying  quantities  for  a  number  of  years,  and 
for  which  the  rental  had  Ix'en  promptly  paid,  it  was  held  that 
the  lessee  was  entitled  to  a  reasonable  time  to  drill  at  other  loca- 
tions to  find  gas  or  oil  in  paying  (piaiititics,  and  during  such 
time  and  for  such  purposes  the  lease  continued  in  force. ^"^ 

§189.     Lessee  cannot  recover  premises  after  forfeiture. 

If  the  lessee  has  been  ousted  for  a  failure  to  keep  the  cove- 
nants of  the  lease,  he  cannot  recover  possession.^*''*  A  part  per- 
formance will  not  enable  him  to  recover  possession. ^"^ 

§190.     Reimbursement  for  expenses. 

A  lessee  who  has  forfeited  his  lease  has  no  right  to  be  reim- 
bursed for  his  expenses  disbursed  in  attempting  to  develop  the 
land.^^*'  And  if  it  is  an  oil  lease,  but  gas  is  found,  the  lessee 
has  no  equity  to  be  reimbursed  for  the  expense  of  drilling  the 
well,  out  of  the  fund  produced  by  the  sale  of  the  gas.^''^ 

162  Northwestern  Natural  Gas  Co.  los  Kreutz    v.    McKnight,    53    Pa. 

V.  Browning.  15  Ohio  Cir.  Ct.  Rep.  St.   319. 

84;  8  Ohio  C.  D.  188.  ice  Palmer  v.  Truby,   136   Pa.   St. 

K13  Blair     v.     Northwestern,     etc.,  556 ;  20  Atl.  Rep.  516. 

Co.,    12    Ohio   Cir.    Ct.    Rep.    78;    5  io7  Allen   v.   Palmer.    136   Pa.   St. 

Ohio  C.  D.  620.  5i56;  26  W.  N.  C.  514;  20  Atl.  Rep. 

104  Oliver  v.  Goetz,   125  Mo.  370;  516;   Palmer  v.  Truby,   136  Pa.  St. 

28  S.  W.  Rep.  441.  556;  20  Atl.  Rep.  516. 


FORFEITURE    OF    LEASE.  221 

^191.     Removal  of  fixtures  and  machinery. 

When  the  lease  is  declared  forfeited  by  the  lessor,  the  lessee 
has  a  right  to  remove  the  fixtures  without  the  right  being  re- 
served in  the  lease.^*^®  And  if  the  right  to  remove  the  buildings, 
fixtures  and  machinery  be  reserved  in  the  lease,  the  right  to  do 
so  cannot  be  disputed.  Thus  where  the  lease  expressly  provided 
that  the  lessee  should  have  such  right  of  removal  "  unless  all 
right  thereto  "  had  been  "  forfeited  by  a  forfeiture  "  of  the 
lease,  or  forfeiture  for  non-payment  of  the  royalty,  it  was  held 
not  to  deprive  the  lessees  of  the  right  to  remove  the  buildings 
and  other  personal  property  which  he  had  put  on  the  lease, 
within  a  i-easonable  time.^*^"  The  right  of  the  lessee  under  an 
express  reservation  of  the  right  to  remove  buildings  and 
machineiy,  has  a  right  to  do  so,  irrespective  of  any  controversy 
as  to  whether  or  not  there  is  a  legal  right  to  abandon  the  lease 
by  reason  of  an  alleged  failure  on  his  part  to  complete  the  work 
of  development.^'"  If  the  lessee  is  refused  tlie  privilege  of  re- 
moving his  buildings  and  machinery,  his  remedy  as  to  such 
buildings  and  machinery'  is  an  action  for  conversion  and  not  an 
action  of  ejectment.^^^  All  fixtures,  buildings  and  machinery 
must  be  removed  ^^^thin  a  reasonable  time  after  notice  of  for- 
feiture given  him  by  the  lessor,^^^  or.  else  they  will  be  deemed 
abandoned,  and  the  lessor  may  take  possession  of  them  for  his 
o^vn  benefit.  The  lessee,  where  he  has  not  drilled  a  well  that 
yields  oil  or  gas  in  paying  quantities,  and  for  that  reason  has 
abandoned  it,  has  a  right  to  draw  and  remove  the  tubing,  casing, 
and  drive  pipe  from  the  well  at  any  time  prior  to  the  expiration 
of  his  lease.  These  instniraents  are  regarded  as  trade  fixtures, 
and  are  not  governed  by  law  pertaining  to  leases  for  agricul- 
tural pursuits.  ^^^ 

168  Cassell  V.  Crothers,  193  Pa.  St.  i7i  Cassell  v.   Crothers,  supra. 

359;  44  Atl.  Eep.  446.     See  Shellar  i72Mickle  v.  Douglas,  supra. 

V.  Shivers,  171  Pa.  St.   569.  its  Siler   v.   Globe   Window   Glass 

i69Mickle  V.  Douglas,  75  la.  78;  Co.,  21  Ohio  Cir.  Ct.  Rep.  284;   11 

39  N.  W.  Pep.  198.  Ohio  C.  D.  784. 

1"*^  Patterson  v.  Hausbeck,   8  Pa. 
Super.  Ct.  Rep.  36. 


222  OIL    AND    GAS. 

§192.     Damages  instead  of  declaring  a  forfeiture. 

Instead  of  declaring  a  forfeiture^  the  lessor  may  waive  it,, 
affirm  the  continuance  of  the  lease,  and  recover  tJie  amount 
specified  in  such  lease  as  damages  for  a  failure  to  comply  with 
its  terms.^^*  If  the  lessees  do  not  covenant  to  pay  rent  or  de- 
velop the  mine,  but  the  lease  contains  a  provision  that  the  lease 
shall  become  void  and  all  rights  cease  unless  a  well  should  be 
completed  within  a  specified  period  of  time,  or  unless  the  lessee 
pay  rent  at  a  certain  rate  per  month  or  year  in  advance,  the  fail- 
ure to  explore  for  oil  will  merely  work  a  forfeiture  of  the  lease 
and  not  impose  any  pecuniary  liability  on  the  lessee.^^^ 

174  Springer  v.   Citizens'  Natural  itg  Glasgow  v.  Chartiers  Oil  Co., 

Gas   Co.,   145   Pa.   St.  430;   22  Atl.  152  Pa.   St.  48;    25  Atl.   Rep.  232; 

R«p.  986,  following  Ray  v.  Gas  Co.,  affirming    Glasgow    v.    Griffith,    22 

138  Pa.  St.  576;  20  Atl.  Rep.  1065.  Pittsb.  L.  J.  (N.  S.)   181. 


CHAPTER  VI. 


ASSIGNMENT    AND  SUBLETTING   OF    LEASE. 

§  1 93.  Lessor  —  lessee. 

§194.  Interest  assignee  secures. 

§195.  Assignee  cannot  take  advantage  of  default  in  lease. 

§196.  Refusing  consent  to  assignment. 

§197.  Sublease. —  Division. 

§198.  Assignment  carries  option. 

§199.  Transfer  of  lease  by  judicial  sale. 

§200.  Equitable  assignee  in  possession. 

§201.  Lease  unassignable. 

§202.  Assignment    of    royalties. —  Administrators. 

§203.  Assignee  of  lessee  bound  by  agreements  in  lease. —  Privity  of  estate. 

§204.  Ground  of  assignee's  liability  to   lessor. 

§205.  Assignee's  liability  broadened  by  terms  of  assignment  or  by  outside 

contract. 

§206.  Extent  of  assignee's  liability. 

§207.  Liability  of  assignee  of  a  part  interest  in  lease. 

§208.  Liability  of  occupier  under  unassigned  lease. 

§209.  Assignee  not  taking  possession  liable. 

§210.  Several  successive  assignees. 

§211.  Lease  not  e.xecuted  by  lessee,  but  possession  taken  under  lease,  effect. 

§212.  Lessee  released  by  substitution  of  assignee. 

§213.  Trustee  of  lessee  and  not  his  cestuis  que  trustent  liable. 

§214.  Cestuis  que  trustent  may  be  liable. 

§215.  Liability  of  assignee  to  his  assignor. 

§216.  Assignor  liable  on  account  of  lease  as  a  surety. 

§217.  Sublease. —  Liability  of  sublessee. 


§193.     Lessor  —  lessee. 

As  a  general  nile  a  lessor  may  assign  his  right  to  an  interest 
in  a  lease  he  has  given  on  his  real  estate ;  or  he  may  convey  the 
realty  itself  which  would  usually  carry  his  rights  in  the  lease. 
And  also  as  a  general  rule  the  lessee  may  assign  the  lease  he  has 
received;  or  if  he  has  a  freehold  interest  under  it,  he  may 
convey  by  deed  his  freehold  interest. 


224  OIL    AND    GAS. 

§194.     Interest  assignee  secures. 

The  assignee  secures  just,  such  int/^rest  as  his,  assignor  had  at 
the  time  of  tlie  assignment  —  at  least  that  is  the  general  rule, 
but,  under  special  circumstances,  ho  may  be  entitled  to  assume 
the  role  of  a  purchaser  for  value  without  notice  of  the  rights 
of  others.^  If  he  have  notice  of  tlie  rights  of  a  prior  lessee,  he 
takes  no  greater  rights  than  his  assigiKu-  had  acquired."  If  tlie 
lease  provide  for  a  forfeiture  under  certain  conditions,  the 
assignee  must  at  his  peril  ascertain  whether  or  not  a  forfeiture 
has  been  incurred.^  The  assignee  is  liable  for  the  taxes  on  all 
improvements  ho  places  on  the  leasehold  ]>remises.*  And  th.is 
is  true  where  the  several  o^\mers  of  a  lease  have  so  conducted 
themselves  as  to  turn  their  several  interests  into  a  partnership.^ 

§195.     Assignee  cannot  take  advantage  of  default  in  lease. 

If  a  default  has  been  made  in.  carrying  out  the  provisions  of 
the  lease,  whether  made  by  the  lessee  or  the  assignee,  neither 
such  lessee  nor  his  assignee  can  urge  the  default  as  an  excuse 
for  not  carrying  out  its  provisions ;  for  such  a  provision  "'  in- 
ures to  the  benefit  of  the  lessor,  and  is  not  effective  in  behalf  of 
the  lessee,  unless  the  lessor  so  elects."  '^ 

§196.     Refusing  consent  to  assignment. 

If  the  lease  of  oil  or  mining  land  contain  a  covenant  prohibitr 
ing  an  assignment  without  the  consent  of  the  lessor,  sucli  con- 

1  Thompson  v.  Christie,  139  Pa.  5  Brown  v.  Beeeher,  120  Pa.  St. 
St.  230;  20  Atl.  Rep.  934;   11  L.  R.       590;    15  Atl.  Rep.  608. 

A.,  236.  A  verbal  transfer,   followed  by  a 

2  Henderson  v.  Terrell,  183  Pa.  change  of  possession,  is  probably  a 
St.  5f7;  41  W.  N.  C.  404;  38  Atl.  valid  transfer  of  the  lessee's  inter- 
Rep.  1018;  Simons  v.  Van  Ingen,  86  est.  Lockhart  v.  Rollins,  2  Idaho 
Pa.  St.  330;  In  re  Huddell,  16  Fed.  503;    21    Pac.   Rep.   413. 

Rep.  373 ;  Caley  v.  Portland  (Colo.),  e  Edmonds   v.    Mounsey,    15    Ind. 

71    Pac.    Rep.    892;    Colorado,    etc.,  App.  399;  44  N.  E.  Rep.  196;  Wills 

Co.  V.  Pryor,  25  Colo.  540,  549;  57  v.  Mfg.,  etc.,  Co.,   130  Pa.  St.  220; 

Pac.  Rep.  51.  18  Atl.  Rep.  721;   Ray  v.  Western. 

•-!  Natural  Gas  Co.  v.  Philadelphia  etc..   Gas  Co.,   138   Pa.   St.   576;    20 

Co.,   158  Pa.   St.   317;   27  Atl.   Rep.  Atl.   Rep.    1065;    Creveling  v.   West 

951;    Aderhold   v.    Oil   Well   Supply  End   Iron  Co.,   51   N.  J.   L.   34;    16 

Co.,  158  Pa.  St.  401;  28  Atl.  Rep.  22.  Atl.    Rep.     184;     Cochran    v.    Pew, 

iln  re  Huddell,  16  Fed.  Rep.  373.  159  Pa.  St.  184;  28  Atl.  Rep.  219. 


ASSIGNMENT   OF    LEASE.  225 

sent  not  to  be  unreasonably  refused,  or  refused  to  a  person  of 
resix)nsibilitY  and  respectability.  The  lessor  mSj  reasonably  re- 
fuse to  give  his  consent  to  an  assignment  to  a  corjwration  which 
does  not  take  it  with  the  intention  to  operate  the  land,  for  such 
corporation  is  not  a  person  of  responsibility  and  respectability 
within  tlie  meaning  of  the  covenant  in  the  lease,  and  tliat,  too, 
even  though  tliere  be  no  covenant  to  operate  works  already  on  the 
lease.^ 

§197.     Sublease. —  Division. 

A  sale  of  the  gas  flowing  from  a  gas  well,  by  the  lessees,  to 
a  gas  company,  which  takes  charge  of  the  gas  and  conducts  it  off 
the  premises,  is  not  an  assignment,  but  a  sublease  of  the  well 
itself.^  If  a  lessee  has  tlie  right,  by  the  terms  of  his  lease,  to 
sublet  and  subdivide  the  premises,  he  may  release  a  part  of 
tliem  set  oif  in  partition  to  one  of  several  tenants  in  common, 
and  retain  tlie  lease  in  operation  upon  the  remainder  of  such 
land.' 

§198.     Assignment  carries  option. 

The  assignment  of  a  lease  carries  with  it  an  option  given  in 
such  lease  to  the  lessee ;  and  the  assignee  is  entitled  to  exercise 
such  option  ujx>n  exactly  the  same  terms  as  the  lessee  would 
have  been  entitled  to  if  he  had  kept  tlie  lease.  Thus  where  the 
lease  of  a  farm  for  oil  purposes  gave  an  option  to  a  lease  on  an 
adjoining  tract  on  "  terms  that  may  be  equal  to  the  best  terms 
offered  by  any  person  or  jiersons  therefor  " ;  and  the  lessor 
falsely  represented  to  the  assignee  that  he  had  been  offered 
twenty  thousand  dollars  for  a  lease  of  the  tract,  when  he  had  been 
offered  only  ten  thousand  dollars  for  it;  and  the  assignee  paid 
the  larger  sum  in  ignorance  of  the  falsehood,  it  was  held  that  he 
had  a  right  to  exercise  the  option  given  by  the  terms  of  the  lease 
tlie  same  as  the  lessee  had,  and  could  recover  back  one-half  the 
sum  he  had  paid  (with  interest).^*' 

T  Harrison    v.    Barrow,    63    L.    T.  Co.,  5  Ohio  C.  D.  620;  12  Ohio  Cir. 

Rep.  834.  Ct.  Rep.  78. 

«Akin    V.   Marshall    Oil    Co.,   188  lo  Guffey   v.    Claver,    146    Pa.    St. 

Pa.  St.  614;  41  Atl.  Rep.  748.  548;  23  Atl.  Rep.   161. 

9  Blair  v.  Northwestern,  etc.,  Gas 


226  OIL    AND    GAS. 

^199.     Transfer  of  lease  by  judicial  sale. 

A  lease  may  be  traiisfcriYnl  bv  n  jndieial  or  sheriff's  snle  of 
the  lessee's  interest  in  it,  and  the  pnrehaser  takes  the  latt(^r's 
place,  standing  \\\yon  no  liii!,li(>r  ])lane  in  any  respect,  and,  liki- 
the  tenant,  is  liable  for  all  taxes  or  improvements  placed  by  him- 
self n]X)n  the  leased  preraises.^^  The  sale  of  the  lease  carries 
with  it  all  the  right  of  the  lessee.^'  If  the  sale  is  by  a  receiver 
of  a  court,  no  title  to  the  lease  passes  until  tJie  sale  and  assign- 
ment of  the  lease  has  been  approved  by  the  court ;  and  until  then 
the  purchaser  is  not  liable  on  the  covenants  and  agreements  con- 
tained in  the  lease  even  if  he  take  possession.  The  lessor,  in 
such  an  instance,  has  the  burden  t<>  show  that  all  ste|)s  necessarv' 
to  vest  the  title  to  the  lease  in  the  assignee  or  purchaser  were 
taken. ^^  The  fact  that  the  lessor  makes  a  new  agreement  with 
the  assignee  will  not  release  the  lessee  from  his  liability  under 
the  terms  of  the  lease  as  they  were  when  the  assignment  was 
made.^*  The  fact  that  the  lessee  may  have  intended  to  assign 
the  lease  to  a  company  that  was  to  he  formed,  will  not  release 
him  from  liability  on  the  covenants  of  the  lease,  even  though  the 
lessor  knew  of  the  possibility  of  the  assignment.^^  Where  tlie 
l6ase  provided  that  the  lessee  should  pay  five  hundred  dollars 
for  the  first  well  drilled,  and  five  hundred  for  each  well  there- 
after drilled ;  and  after  the  first  well  was  drilled  he  assigned 
the  lease,  and  then  the  assignee  put  down  a  well,  it  was  held  tliat 
the  lessee  was  liable  to  pay  five  hundred  dollars  for  the  well  the 
assignee  put  do^\^l.^® 

*i-In    re    Huddell,    16    Fed.    Rep.  i3  Heller  v.   Dailey,  28   Ind.  App. 

373;    Lykens    Valley    Co.    v.    Dock,  555;   Q,i  N.  E.  Rep.  490. 

62  Pa.  St.  232 ;  Aderhold  v.  Oil  Well  i*  Fisher    v.    Milliken,    8    Pa.    St. 

Supply    Co.,    158    Pa.    St.    401;    28  111. 

Atl.    Rep.    22;    Jashanosky    v.    Vol-  is  Sanders  v.   Sharp,    153   Pa.   St. 

rath,  59  Ohio  St.  540;  53  N.  E.  Rep.  555;  31  W.  N.  C.  374;  25  Atl.  Rep. 

46;  69  Am.  St.  Rep.  786;  Simons  v.  524. 

Van  Ingen,   86  Pa.  St.  330;   Acklin  ^s  Pittsburgh,   etc.,   Co.   v.   Green- 

V.   Waltermier.   10  Ohio   C.   C.   Dec.  le,    164    Pa.    St.   549;    30   Atl.   Rep. 

t629;  19  Ohio  C.  C.  Rep.  372.  489. 

12  Murphy  v.  Hardee,  12  Ohio  Cir. 
Ct.  Dec.  837. 


ASSIGNMENT  OF  LEASE.  22 


§200.     Equitable  assignee  in  possession. 

An  equitable  assignee,  tlioiigh  he  takes  possession  under  the 
lease,  is  not  a  legal  assignee,  nor  is  he  liable  on  the  covenants  of 
the  lease  to  tne  lessor.     Thus  where  a  lease  was  not  assignable 
without  the  consent  of  the  lessor,  but  the  lessee  agreed  in  writ- 
ing to  assign  the  lease  to  certain  i>ersons,  who  took  possession 
of^'the  premises  and  worked  the  mines  upon  them,  but  no  deed 
of  assignment  was  ever  executed  to  them ;  and  these  persons 
afterward  assigned  over  all  their  interests  to  an  indigent  work- 
man, the  court  declared  the  assignment  to  be  a  good  equitable 
one  under  the  agreement,  but  the  persons  with  whom  the  agree- 
ment Avas  made  were  not  liable  at  the  suit  of  the  lessor  for  the 
performance  of  the  covenants,  for  tlie  agreements  in  the  lease 
were  not  between  the  lessor  and  such  persons,  and  a  court  of 
equity  could  not  treat  the  agTcement  as  a  tenancy."     But  where 
the  lease  was  to  a  trustee  for  five  other  persons,  who  entered 
and  worked  the  mines ;  and  the  trustee  becoming  insolvent,  tho 
lessor  sued  these  five  i)ersons  for  the  rent,  it  was  decreed  that  an 
account  should  be  taken  of  the  amount  due  the  lessor,  by  the 
trustee,  and  if  he  made  default,  then  an  account  should  be  taken 
of  the  moneys  of  these  five  persons  in  his  hands,  and  the  amount 
due  the  lessor  paid  thereout ;  and  in  case  such  moneys  should  not 
be  sufficient  to  pay  the  lessor,  then  such  five  i^ersons  were  to 
each  pay  one-fifth  part  of  the  deficiency;  and  they  should  con- 
tinue to  pay  so  long  as  the  rents  became  due.^® 

§201.     Lease  unassignable. 

If  a  lease  be  unassignable  —  as,  for  instance,  if  it  have  nnr 
w^ords  in  it  making  it  run  to  the  assigns  of  the  lessee,  or  if  there 
is  an  express  statement  in  it  that  it  is  not  or  can  not  be  assigned 

that  Avill  not  permit  one  who  takes  possession  under  it  by 

virtue  of  an  attempted  assignment  to  escape  liability  to  the 
lessor.     In   such   an   instance   the   occupant   of  the  gi'ound  is 

17  Cox  V    Bishop,  8  De  G.  M.  and  i«Lee  v.  Roundwood  Colliery  Co, 

G    815-    26   L    J.   Ch.   389;    3.Ji.r.  [1897],  1  Ch.  373;  66  L.  J.  Ch.  186; 

(N.  S.)    499;  29  L.  T.  44;   5  W.  R.  75  L.  T.  641;  45  W.  R.  324. 
4.57. 


228  OIL    AXD    GAS. 

liable  to  the  owner  upon  an  implied  assumpsit  to  pay  a  reasona- 
ble compensa.tion  for  his  occupation,  or  for  trespass  for  the 
wrongful  occupation/"  And  the  lessor  may  obtain  a  right 
against  the  assignee  where  he  and  the  latter  have  entered  into 
an  agi*eemeut  with  res}3ect  to  the  occupancy  of  the  premises  by 
reason,  of  such  assignee  having  taken  possession  under  tlie  at- 
tempted assigiiment.  Such  was  the  case  where  an  agreement 
was  entered  into  between  the  lessor  and  assignee  for  an  exten- 
sion of  the  time  of  performance  of  the  covenants  of  the  lease, 
for  the  payment  of  increased  royalties,  and  also  into  a  provision 
that  the  lease  "  shall  remain  in  full  force  in  all  particulars  in 
which  the  same  is  not  hereby  modified."  This  gave  the  assignee 
all  the  rights  of  the  original  lessee,  even  to  a  renewal  of  the 
lease."** 

§202.     Assignment  of  royalties.  —  Administrator. 

A  lessor  may  assign  a  lease  he  has  given,  eitlier  by  proper 
Avords  of  assig-nment  on  the  lease,  if  he  can  obtain  possession  of 
it,  or  by  a  separate  instrument ;  and  his  assignment  will  carry 
the  rent  or  royalties  thereafter  falling  due,  but  not  those  that 
have  fallen  due  before  the  date  of  the  assignment,  unless  tlie 

19  Walters  v.  Northern  Coal  Min-  on  the  tract,  to  have  and  to  holfi 
ing  Co.,  25  L.  J.  Ch.  (N.  S.)  633;  the  land  as  long  as  they  should 
5  De  G.  M.  and  G.  629;  26  L.  T.  deem  it  worthy  of  searching  for 
167;  4  W.  R.  140;  2  Jur.  (N.  S.)  minerals,  in  which  they  agree  to  not 
1.  But  see  Oil  Creek,  etc.,  v.  Stan-  use  the  land  for  any  other  pur- 
ton  Oil  Co.,  23  Pa.  Co.  Ct.  Rep.  poses,  is  an  unassignable  lease;  be- 
153;  30  Pittsb.  L.  J.  (N.  S.)  286.  cause  the  personal  skill  of  the 
'  20  Guffey  V.  Clever,  146  Pa.  St.  miners  has  been  contracted  for. 
548^.23  Atl.  Rep.   161.  Hodgson  v.  Perkins,   84  Va.  706;    5 

A  lease  contained  a  clause  that  it  S.  h.  Rep.  710. 

shoula    terminate    on    "  a    sale    or  An  oil  well  on  a  lease  to  continue 

transfer  "    of    the    property    during  as    long     as   oil    could   be    procured 

the  term,  it  was  held  that  the  word  from   the  premises  in  paying  quan- 

"  transfer  "  related  to  a  transfer  of  tities,    was    abandoned    by    the    les- 

tlie  title,   and  not   a  mere  transfer  sees,  because   of  the   failure   of   the 

of  the  right  of  possession.     Ober  v.  output.     It    was   held   that    the   as- 

Schenck,  23  Utah  614;  65  Pac.  Rep.  signment    of    the    lease    thei'eaftcr 

1073.  gave  no  title  to  the  assignee,   even 

A  deed  conferring  upon  skilled  though  the  lessees  had  first  attempt- 
miners  the  privilege  to  raise  ore,  ed  to  renew  it.  Cole  v.  Taylor,  8 
with  the  use  of  timbers  and  water  Super.  Ct.    (Pa.)    19. 


ASSIGXMEXT   OF   LEASE.  229 

right  to  them  is  also  assigTied.  In  order  to  assign  the  lease  it 
is  not  necessary  to  make  a  sale  or  transfer  of  his  reversionary  in- 
terest in  the  land.  A  lease  was  assigned  afjter  it  had  expired, 
by  the  use  of  the  following  language  endorsed  upon  it :  "  For 
value  received  we  hereby  sell,  transfer  and  assign  all  our  in- 
terests, right  and  title  in  and  to  the  original  contract  to,"  a 
person  being  named  as  assignee.  It  was  claimed  that  this  did 
not  pass  the  right  to  collect  damages  then  due  by  the  terms  of 
the  lease,  but  the  court  held  otherwise.  "  They  had  a  right  of 
action  under  the  contract,"  said  the  court,  "  and  when  they  as- 
signed all  their  rights  and  interest  therein,  they  assigned  this 
right  of  action.  The  time  for  which  the  land  was  leased  having 
expired,  there  remained  nothing  but  this  right  of  action  to  be 
transferred.  To  hold  that  the  assignment  transferred  only  the 
original  instrument  would  be  too  narrow  a  construction."  ^^ 
So  where  the  owner  of  land  executes  a  gas  or  oil  lease  upon  it, 
and  afterward  conveys  the  land  by  an  ordinary  quit  claim  or 
warranty  deed  the  grantee  is  entitled  to  the  rents  maturing  after 
the  conveyance.""  But  where  a  lease  for  years  reserves  a  cer- 
tain royalty  for  all  oil  or  gas  produced,  the  royalty  reserved 
goes  to  the  personal  representatives  of  the  deceased  lessor,  and 
not  to  his  heirs. "^  So  where  the  royalty  reserved  was  a  certain 
fraction  of  the  oil  produced ;  and  afterward  the  lessor  gave  the 
land  to  his  children,  reserving  to  himself  a  life  estate  in  it,  it 

21  Indianapolis,  etc..  Gas  Co.  v.  Woodburn's  Estate,  138  Pa.  St.  606; 
Pierce,  25  Ind.  App.  116;  56  N.  E.  21  Atl.  Rep.  16;  21  Am.  St.  Rep. 
Rep.  137.  See  Morgan  v.  Yard,  13  932  (oil  and  gas)  ;  Manderbach  v. 
Pittsb.  L.  J.  (X.  S.)  178;  12  W.  N.  Bethany,  etc..  Home,  109  Pa.  St. 
C.  449;  Chandler  V.  Pittsburgh,  etc.,  231;  2  Atl.  Rep.  422  (rent  for 
Co.,  20  Ind.  App.  165;  50  X.  E.  Rep.  water  from  a  spring).  See  Butt  v. 
400.                                .  Ellett,   19   Wall.   544;    Van   Rensse- 

22  Chandler  v.  Pittsburgh,  etc.,  laer  v.  Hays,  19  X.  Y.  68;  75  Am. 
Co.,  20  Ind.  App.  165;  50  X.  E.  Rep.  Dec.  278;  Peerrin  v.  Lepper,  34 
400.  In  Svvint  v.  McCalmont  Oil  Mien.  292;  McGuffie  v.  Carter.  42 
Co..  184  Pa.  St.  202,  38  Atl.  Rep.  Mich.  497;  4  X.  W.  Rep.  211;  Page 
1021,  it  was  assumed  that  the  rents  v.  Culver,  55  Mo.  App.  606;  West 
passed  to  the  grantee.  Undue  rents  Shore  Mills  Co.  v.  Edwards,  24  Ore. 
for  coal  pass.  Hendrix  v.  ]\IcBeth,  475;  33  Pac.  Rep.  987;  Morrow  v. 
61  Ind.  473;  28  Amer.  Rep.  680;  Sawyer,  82  Ga.  226 ;  8  S.  E.  Rep.  51. 
Hendrix  v.  Hendrix,  65  Tnd.  329;  23  Brunot's  Estate,  29  Pittsb.  L. 
McDowell  V.  Hendrix,  67  Ind.  513;  J.   (X.  S.)   105. 


230 


OIL    AND    GAS. 


was  held  tliat  he  was  entitled  to  the  royalty,  i,mder  tlie  rule 
that  tlie  life-tenant  is  entitled  to  work  all  wells  open  at  tlie  time 
the  tenancy  is  created.^*  Where  a  testator  owned  six  hundred 
acres  of  land,  divided  into  three  adjoining  fanns,  ujx^n  all  of 
which  was  an  oil  lease,  in  which  a  certain  royalty  was  reserved 
and  which  had  twelve  years  to  run  at  his  death ;  and  wells, 
Avhen  he  died,  were  in  operation  on  one  farm  only,  which  was 
given  by  his  will  to  one  of  his  three  children,  and  the  other  two 
farms  to  his  other  two  children  severally,  the  court  decided 
that  the  royalties  should  also  be  divided,  and  one-tliird  given  to 
each  devisee ;  for  the  reason  that  the  working  of  the  oil  wells  on 
the  one  farm  had  the  effect  to  drain  the  oil  from  the  other  two 
farms,  and  thus  the  devisee  of  those  two  farms  would  receive 
no  benefit  from  the  lease  which  covered  their  farms. "^  If  the 
owner  of  the  reversion  has  sold  the  premises,  he  cannot  maintain 
an  action  in  his  own  name  for  the  use  of  his  vendee,  for  a  breach 
of  a  covenant  that  has  occurred  after  ho  has  made  the  sale.'"' 


24Koen  V.  Bartlett,  41  W.  Va. 
559;  23  S.  E.  Rep.  6G4;  31  L.  R. 
A.  128. 

Where  the  owner  of  land  con- 
veyed it,  reserving  for  life  one-eighth 
of  the  oil  produced,  and  the  gi'antee 
leased  the  land,  reserving  to  him- 
self one-eighth,  it  was  held  that  the 
last  reservation  was  one-eighth  of 
seven-eighths,  for  it  could  not  be 
contended  that  when  he  made  his 
reservation  he  intended  to  reserve 
any  part  of  the  oil  reserved  by  the 
original  grantor,  but  he  reserved  a 
share  only  of  that  which  he  was  en- 
titled to  under  his  grant.  Harris  v. 
Cobb,  49  W.  Va.  350;  38  S.  E.  Rep. 
559. 

25  Wettengel  v.  Gormley,  160  Pa. 
St.  550;  28  Atl.  Rep.  934;  40  Am. 
St.  Rep.  733;  Wettengel  v.  Gorm- 
ley, 184  Pa.  St.  3G4;  39  Atl.  Rep. 
1118.  But  spp  where  the  Ohio  Su- 
preme Court  refused  to  follow  these 
cases.  Northwestern  Ohio  Nat.  Gas 
Co.  v.  Ullery,  67  N.  E.  Rep.  494. 


2C  Stoddard  v.  Emery,  128  Pa.  St. 
436;   18  Atl.  Rep.  339. 

Tlie  owner  of  oil  land  conveyed 
an  undivided  interest  in  it,  and 
gave  to  the  gi-antees  the  right  to 
drill  for  oil  on  the  portion  uncon- 
veyed,  reserving  a  royalty  to  him- 
self. Afterward  he  sold  tlie  remain- 
ing undivided  interest,  subject  to 
the  oil  lease,  of  which  he  finally  be- 
came the  assignee.  By  will  he  left 
all  his  property  to  his  devisees,  and 
they  conveyed  to  third  parties,  re- 
citing in  the  deed  that  it  was  their 
intention  to  convey  all  lands  and 
premises  owned^  by  them,  and  in 
which  they  had  an  interest.  It  was 
held  that  the  conveyance  passed  no 
rights  under  the  oil  lease,  for  it 
was  a  mere  incorporeal  right,  which 
the  conveyance  did  not  embrace. 
Wagner  v.  IMallory.  41  N.  Y.  App. 
DiA^  126;  58  N.  Y.  Supp.  526; 
affirmed  169  N.  Y.  501;  62  N.  E. 
Rep.  584.  But  did  not  tlie  holders 
of  the  lease  have  an  interest  in  the 


ASSIGNMENT   OF   LEASE.  231 

If  there  has  been  a  joint  reservation  of  royalties,  an  assignment 
of  his  interest  in  the  lease  by  one  of  those  jointly  interested  does 
not  amount  to  a  severance  of  the  royalties  nor  apportion- 
ment of  them  among  the  co-lessors,  but  the  assignee  becomes  a 
tenant  in  common  of  the  royalties  with  the  co-lessors,  and  any 
one  of  them  can'  receipt  for  the  same.'^ 

§203.     Assignee  of  lessee  bound  by  agreements  in  lease. —  Privity 
of  estate. 

The  assignee  of  a  lessee  of  a  lease  takes  the  position  of  his 
assignor  and  becomes  bound  by  all  the  terms,  agreements  and 
covenants  of  the  lease  to  the  lessor,  to  be  performed  while  he 
holds  the  lease,  the  same  as  if  he  had  been  the  original  lessee. 
"  The  original  lessee  is  bound  by  the  contract,"  to  quote  from 
an  opinion  of  tlie  Court  of  Indiana,  "  to  make  the  payments. 
The  assignees  are  bound  by  tlieir  acceptance  of  the  lease,  to 
make  good  the  covenants  to  pay  rent,  therein  contained.  Their 
liability  is  upon  the  covenants,  and  arises,  not  from  any  express 
assumption  or  agreement  to  pay  it,  which  might  be  contained  in 
the  written  assignment,  but  from  the  privity  of  estate  by  reason 
of  their  ownership  and  right  to  enjoy  the  benefit  of  the  lease. 
Covenants  to  pay  rent  and  royalties  run  with  tlie  land."  "* 
"  The  assignee  is  answerable  for  the  rent,"  said  the  Supreme 
Court  of  California,  "  during  his  ownership  of  the  terms  under 
the  assignment,  and  his  liability  therefor  arises  out  of  the  privity 
of  estate,  and  this,  without  reference  to  any  obligation  assumed 
by  liiin  in  the  contract  of  assignment."  "^     The  Supreme  Court 

laiKlV     See  Heller  v.  Dailey,  28  Ind.  Garrett.  L.   R.  5   Exch.   132;    39  L. 

App.  r,.-).-);  63  N.  E.  Rep.  490.  J.   Exch.  69;   22  L.  T.   343;    18  W. 

2T  Swint   V.    MeCalmont    Oil    Co.,  R.  697. 
184  Pa.  St.  202;   41  W.  N.  C.  491;  29  Bonetti  v.  Treat,  91  Cal.  223; 

38   Atl.  Rep.   1021.  27   Pac.   Rep.   612;    Breckenridge  v. 

28  Eilmonds   v.   Mounsey,    15   Ind.  Parrott,    15   Ind.   App.   411;    44   N. 

App.  399;  44  N.  E.  Rep.  196.  citinfj  E.     Rep.     66;      Goddard's     Appeal. 

Watson    Coal.   etc..    Co.    v.    Casteel.  1      Walker       (Pa.)       97      Bradford 

73   Ind.  296;   McDowell  v.  Hendrix.  Oil     Co.     v.     Blair,     113     Pa.     St. 

67    Ind.   513;    Gordon  v.   Georfre.    12  83:    4    .\tl.    Rep.    218;    Washington, 

Ind.    408:    Stewart   v.    Lon?    Island  etc..    Ga.s    Co.    v.    Johnson,    123    Pa. 

Ry.   Co..    102   N.   Y.   601;   Moule  v.  St.  576;   16  Atl.  Rep.  799;  11  Morr. 


232  OIL    AND    GAS. 

of  Pennsylvania  Ims  stated  the  rule  in  a  sinc^le  sontcnce,  thus: 
"  It  is  settled  law  that  covenants  to  pay  rent  or  royalty  rnn  with 
the  land,  and  that  the  assignee  of  the  lease  is  liable  for  the  pay- 
ment of  all  rents  or  royalties  wliich  accrue  while  he  held  the 
assignment  of  the  lease."  ^^  Of  course,  when  the  lessor  seeks 
to  hold  the  assignee  liable  on  the  covenants  and  agreements  in 
the  lease,  he  has  the  burden  to  show  that  an  actual  assignment 
was  made.^^ 

§204.     Ground  of  assignee's  liability  to  lessor. 

By  the  assignment  of  the  lease  a  privity  of  estate  is  not 
created  between  the  assignee  and  the  lessor  for  that  period  prior 
to  the  assignment,  nor  for  the  part  of  the  lease  remaining  after 
he  has  ceased  to  enjoy  it,  "  The  assignee,  having  entered  under 
an  assignment  and  thus  come  into  privity,  that  privity  con- 
tinues as  long  as  his  beneficial  cnjoynicnt  of  the  demised 
property  or  right  to  it  remains."  "'"  The  liability  of  the  assignee 
to  the  lessor  is,  tKerefore,  based  upon  their  ]U'ivity  of  estate, 
and  not  necessarily  upon  an  agreement  to  keep  tlie  covenants  of 
the  lease.  "  A  lessee,"  said  Judge  Simonton,  "  remains  liable 
on  his  express  obligation,  notwithstanding  he  may  have  as- 
signed his  lease.  And  the  lessor  may  sue  at  his  election  either 
the  lessee  or  the  assignee,  or  may  pursue  tliis  remedy  against 
both  at  the  same  time,  tliough,  of  course,  with  but  oae  satisfac- 
tion. In  such  oaseS',  the  liability  of  the  original  lessee  depends 
upon  privity  of  contract  and  continues  during  the  whole  term, 
while  the  liability  of  the  assignee  depends  upon  privity  of  estate, 
created  by  the  assignment  and  continues  only  during  tlie  time 

Min.  Rep.   165 ;   Goss  v.  Fire  Brick  Walters  v.  Northern,  etc.,  Co..  25  L. 

Co.,   4   Super.   Ct.    (Pa.)    167;    Fen-  J.  Ch.   (N.  S.)   633;  5  De  G.  M.  and 

nell  V.  Guffey,   139  Pa.  St.  341;   20  G.  629;  26  L.  T.  167;  4  W.  R.  140; 

Atl.  Rep.   1048;   Williams  v.  Short,  2  Jur.   (N.  S.)    1. 

155  Pa.  St.  480;   26  Atl.  Rep.  662;  3o  Fennell  v.   Guffey.   139   Pa.   St. 

Comegys  V.  Russell.  175  Pa.  St.  166;  341;    20  Atl.   Rep.    1048;    Heller   v. 

34  Atl.  Rep.  657;  Fennell  v.  Guffey,  Dailey.  28  Ind.  App.  555;  63  N.  E. 

155   Pa.   St.   38;    25   Atl.   Rep.   785;  Rep.   490. 

Springer  v.  Citizens',  etc.,  Gas  Co.,  3i  Heller  v.   Dailey.  28   Ind.  App. 

145  Pa.  St.  430;   22  Atl.  Rep.  986;  555;  63  N.  E.  Rep.  490. 

Aderhold   v.    Oil    Well    Supply    Co.,  32  Negley   v.   Morgan,   46    Pa.    St. 

158  Pa.   St.  401;    28  Atl.  Rep.  22;  281. 


ASSIGNMENT   OF   LEASE.  233 

he  holds  legal  title  to  the  leasehold  estate  during  the  assign- 
ment." ^^  "  For,  although  there  was  no  privity  of  eontract  be- 
tween the  lessor  and  the  assignee  of  the  lessees,  yet  there  was 
a  privity  of  estate  between  them,  as  long  as  the  assignee  re- 
mained in  possession  of  the  demised  premises,  which  created 
the  debt  for  the  rent  or  royalty  reserved  in  the  lease,  in  favor 
of  the  lessor  and  against  the  assignee."  ^'^  "  Turning  then  to 
the  question  raised  by  the  points,"  said  the  Supreme  Court  of 
Pennsylvania,  ''  we  find  the  facts  to  be  assumed  therein,  and  the 
liability  of  the  gas  company  to  depend  upon  the  extent  to 
which  the  covenants  of  Guffey  run  with  the  land.  That  they 
continued  liable,  notwithstanding  their  assignment  to  Kobbins, 
is  very  clear.  The  covenant  was  their  own,  and  their  privity 
of  contract  with  their  lessors  continued  notwithstanding  their 
assignment  of  the  lease.  Their  assignee,  Robbins,  who  was 
in  possession  when  the  time  for  performance  arrived,  was  also 
liable,  because  of  the  privity  of  estate  which  arose  upon  his  ac- 
ceptance of  the  assignment.  Acquiring  the  leasehold  estate  by 
the  assignment  of  the  lease,  he  is  fixed  with  notice  of  its 
covenants,  and  he  takes  the  estate  of  his  assignor  cum  onere. 
But  as  his  liability  grows  out  of  privity  of  estate,  it  ceases  when 
the  privity  ceases.  If  he  had  assigiied  before  the  time  for  per- 
formance, his  liability  would  have  ceased  with  his  title,  and 
liability  would  have  attached  to  bis  assignee  by  reason  of  priv- 
ity ;  but  he  would  not  be  liable  for  those  previously  broken,  or 
subsequently  maturing,  because  of  the  absence  of  any  contract 
relation  with  the  lessor.  While  he  holds  the  estate  and  enjoys 
its  benefits,  he  bears  its  burdens  by  assignment,  even  though,  as 
is  said  is  done  in  the  case,  his  assignment  be  to  a  beggar."  ^^ 
And  the  court  referred  to  the  claim  that  a  certain  case  ^^  held 


33  McBee  v.  Sampson,  66  1  ed.  Rep.  Ind.  408 ;   Carley  v.  Lewis,  24  Ind. 

416;    Childs   v.   Clark,   3   Barb.   Ch.  23;    McDowell   v.   Hendrix,   67    Ind. 

52;    49   Am.   Dec.    164;    Johnson   v.  513. 

Sherman.  15  Cal.  287 ;    76  Am.  Dec.  35  Washington,    etc.,    Gas    Co.    v. 

481;    Wall   v.   Hinds,   4   Gray   256;  Johnson.    123   Pa.   St.   576;    16   Atl. 

Smith  V.  Harrison,  42  Ohio  St.  180.  Rep.  799. 

3*  Watson,  etc..  Co.  v.  Casteel.  73  so  Bradford  Oil   Co.  v.  Blair,   113 

Ind.  296,  citing  Rowland  v.  Coffin,  Pa.  St.  83;  4  Atl.  Rep.  218. 
9   Pick.   52;    Gordon   v.   George,    12 


234  OIL    AND    GAS. 

a  different  rule,  and  declared  it  was  clearly  distinguishable  from 
the  case  then  in  hand.  "  The  covenant  which  it  was  sought  to 
enforce  in  that  case  was  not  for  the  completion  of  successive 
•wells  at  successive  dates,  but  it  was  for  the  commencement  of 
the  work  of  developing  Blair's  farm  at  a  time  certain,  and  to 
^  continue  with  due  diligence  and  without  delay  to  prosecute 
the  business  to  success  or  abandonment,  and,  if  successful,  to 
prosecute  the  same  without  intcnniption.'  Two  wells  were  com- 
pleted, and  were  successful  oil  wells.  The  assignee  of  the  lease 
owned  adjoining  lands  upon  which  it  was  operating,  and  it 
stoj^jped  work  on  the  Blair  farm.  The  action  rested  on  the 
breach  of  the  covenant  to  pTosecute  the  business  of  producing 
oil  from  the  land  of  the  lessor  with  due  diligence  and  '  without 
interruption.'  The  obligation  of  a  covenant  to  prosecute  the 
business  developing  the  land  of  the  lessor  w^ithout  delay  and 
without  interruption,  is  a  continuing  one.  The  breach  for 
which  the  Bradford  Oil  Co.  was  held  liable  was  not  that  of 
some  previous  holder  of  the  title,  but  its  owner.' 


>5   37 


§205.     Assignee's  liability  broadened  by  terms  of  assignment  or 
by  outside  contract. 

■  The  liability  of  an  assigiiee  may  be  broadened  by  the  terms  of 
the  assignment,  or  by  a  contract  outside  of  it.  If  there  be 
express  covenants  in  the  assignment,  they  are  so  many  additions 
to  the  covenants  of  the  lease,  and  the  lessor  may  take  advantage 
of  them  if  they  run  in  his  favor.^*  Thus  if  the  assignment 
provides  that  the  assignee  shall  hold  the  lease  under  the  terms 
of  the  lease  and  subject  to  the  rents  and  covenants  therein  on 
the  part  of  the  lessee,  and  he  accepts  it,  he  will  be  liable  for 
rentals  which  had  matured  and  remained  unpaid  at  the  time 

37  Akin  V.   Marsliall   Oil   Co.,   188   .        See  the  excellent  statement  of  the 

Pa.  St.  614;  41  Atl.  Rep.  748;  Ader-  liability  in  Heller  v.  Dailey,  2S   In  1. 

hold  V.  Oil  Well  Supply  Co..  1.58  Pa.  App.  555;  6.3  N.  E.  Rep.  490. 

St.  401:   28  Atl.  Rep.  22;  Drake  v.  38  Consolidated  Coal  Co.  v.  Peers. 

Lacoe,  157  Pa.  St.  17;  27  Atl.  Rep.  .39  111.  App.  453;  same  case.  150  111. 

538;    Borland's   Appeal.   66   Pa.   St.  344;   37  N.  E.  Rep.  937;  Goddard's 

470;  Goss  v.  Brick  Co.,  4  Super.  Ct.  Appeal,  1  Walk.    (Pa.)    97. 
(Pa.)    167. 


ASSIGNMENT   OF   LEASE.  235 

it  was  executed.^"  An  agreement  to  perform  the  covenants 
of  the  lease  renders  the  assignee  liable  for  the  unperformed 
covenants;  and  also  renders  him  liable  for  the  rent  or  royal- 
ties accruing  after  he  may  have  also  assigned  the  lease  to  an- 
other.*"^ 

§206.     Extent  of  assignee's  liability. 

While  the  assignee  is  liable  for  the  carrying  out  of  tbe  terms 
of  the.  lease,  yet  he  is  liable  only  for  those  obligations  that  ac- 
crue while  he  enjoys  its  privileges,  or,  as  it  has  been  said,  dur- 
ing the  continuance  of  his  own  estate.  His  agreement  is  that 
during  his  estate  he  will  pay  tlie  rents  or  royalties  due  under 
and  perform  the  covenants  of  the  lease.*^  He  is  not  liable, 
\vithout  an.  express  agreement  in  the  assignment,  to  pay  for 
rents  or  royalties  that  had  accrued,  or  for  the  performance  of 
covenants  that  were  to  performed  in  point  of  time  before  the 
assignment.  Thus  where  the  assigiied  lease  provided  tliat  a 
well  should  be  completed  within  a  certain  time,  and  if  not  a 
specified  sum  of  money  per  year  should  be  paid  for  each  year 
during  which  the  completion  of  a  well  was  delayed,  it  was  held 
that  the  assignee  was  not  liable  for  the  payment  of  such  sum, 
where  he  assigned  the  lease  before  the  lapse  of  the  year ;  for 
the  amount  due  did  not  and  could  not  accrue  before  he  assigned 
the  lease,  and  consequently  he  was  not  liable.*"  Xor  is  the  as- 
signee liable  for  damages  for  failure  to  dig  a  well  upon  the 
demised  premises  when  the  time  for  the  completion  of  the  well 
expired  before  the  lease  was  assigned.*^     If  the  time  for  the 

39  Woodland  Oil  Co.  v.  Crawford,  11  Morr.  Min.  Rep.  165;  Walters 
55  Ohio  St.  161;  36  Ohio  L.  Bull.  v.  Northern  Coal  Mining  Co..  25  L. 
231;  44  X.  E.  Rep.  1093;  34  L.  R.  J.  (N.  S.)  Ch.  633;  5  De  G.  M. 
A.    62.  and  G.  629;  26  L.  T.  167;  4  W.  R. 

40  Port  V.  Jackson,  17  Johns.  239;  140;  2  Jur.  (N.  S.)  1;  Heller  v. 
Martineau  v.  Steele,  14  Wis.  272.  Dailey,  28  Ind.  App.  555;  63  N.  E. 

41  Wolveridge    v.    Steward,    1    C.  Rep.    490. 

and  M.  644;   2  L.  J.  Exch.   303;    3  42  Watt   v.   Equitable   Gas   Co.,   8 

Tyr.   637;   Moule  v.   Garrett,  L.   R.  Super.  Ct.   (Pa.)   618;  29  Pittsb.  L. 

5    Exch.    132;    39    L.    J.    Exch.    69;  J.   (N.  S.)   221 ;  43  W.  N.  C.  215. 

22  L.  T.  343;   18  W.  R.  697;  Wash-  43  W'ashington,    etc..    Gas    Co.    v. 

ington,    etc..    Gas    Co.    v.    .Johnson,  Johnson,    supra. 
123  Pa.  St.  576;   16  Atl.  Rep.  709; 


23G  on.    AND    GAS. 

completion  of  tlio  well  had  expired  after  the  assignment,  the 
assignee  wonld  have  been  liable.**  In  a  coal  lease  it  was  pro- 
vided that  royalties  slionld  be  paid  senii-annnallv,  and  if  the 
amount  dne  at  the  end  of  any  half  year  remained  due  at  the 
end  of  a  year  thereafter,  the  lease  by  reason  of  such  delinquency 
was  forfeited,  and  the  lessor  was  authorized  "  to  enter  and  take 
possession  without  recourse  to  law^"  Four  years  after  its  ex- 
ecution the  lessee  gave  E  and  others  an  option  to  purchase  the 
lease,  one  of  the  conditions  being  that  they  should  test  the 
character  of  the  oil  veins  on  the  land  by  boring  down  through 
them.  After  the  boring  was  done,  and  nearly  a  year  after  the 
option  was  given,  E  notified  the  lessee  that  they  accepted  his 
option.  More  than  a  year  after  this  notice  was  given,  E  and 
his  associates  called  upon  the  lessor  to  pay  any  royalties  then 
due,  and  were  told  by  him  that  none  were  due,  but  if  there 
were,  he  would  not  take  them  from  them  —  from  E  and  his 
associates.  Two  months  aftenvards  the  lessor  re-entered  for 
the  non-payment  of  tlie  royalties  within  a  year  after  they  had 
accrued.  It  was  shown  that  the  lessor  knew  that  E  and  his 
associates  had  been  boring  upon  the  land,  and  that  he  had 
pointed  out  to  them  the  boundary  lines  of  the  tract.  It  was 
held  that  E  and  his  associates  were  bound  to  take  notice  of  the 
covenants  of  the  lease ;  that  the  fact  the  lessor  knew  of  the 
negotiations  for  the  assignment  of  the  lease  gave  E  and  his  as- 
sociates no  rights  as  against  the  lessor,  except  such  as  the  lessee 
had,  and  imposed  no  duties  on  the  lessor  toward  them,  except 
such  as  he  was  bound  to  the  lessee  under  the  terms  of  the  lease ; 
that  E  and  those  with  him  were  bound  to  take  notice^  whether 
th(i.  royalties  had  been  and  were  being  paid,  what  was  the  state 
of  the  accounts,  the  responsibility  for  which  they  were  about  to 
assume;  that  as  they  had  neither  paid  nor  offered  to  pay  the 
royalties  they  had  no  higher  standing  than  the  lessee  so  far  as 
their  contract  rights  were  concerned ;  and  that  the  les- 
sor was  not  estopped  as  against  them  by  the  fact  that  he  knew 
the  boring  was  going  on,  or  by  what  he  had  said  to  them.*^     A 

44Aderhold    v.    Oil    Well    Supply  45  Comegys    v.    Russell.    175    Pa. 

Co.,     158     Pa.     St.     401;     28     Atl.       St.   166;   34  Atl.  Rep.  657. 
Rep.    22. 


ASSIG^rMENT   OF   LEASE.  '3o7 

lessee  assigned  an  oil  lease,  in  consideration  of  which  it  was 
agreed  that  if  the  assignee  or  his  assignees  should  "  operate 
under  the  said  leaseholds,  that  on  each  of  the  leases  he  so 
operates,  and  if  the  oil  is  found  in  paying  quantities,  the  said 
assignee  or  his  assignees  agree  to  pay  the  lessee  "  one  hundred 
dollars  for  the  leasehold  upon  which  a  paying  well  was  found. 
The  assignee  surrendered  the  leases  to  the  lessors  and  took  new 
ones  containing  the  same  provisions,  which  he  assigned  to  in- 
nocent parties.  It  was  held  that  the  lessee's  claim  for  payment 
could  be  enforced  only  when  oil  had  been  found  on  the  land  in 
paying  quantities;  and  in  that  case,  by  whomsoever  found,  a 
recovery  could  be  had  against  the  assignee ;  but  the  fact  of  the 
surrender  gave  no  cause  of  action.***  When  the  lessor  sues  the 
assignee  on  the  covenants  of  the  lease',  he  has  the  burden  to 
show  an  actual  assignment.  And  where  tlie  receiver  of  a  lessee 
assigned  the  lease,  but  the  assignment  or  transfer  was  never  ap^ 
proved  by  the  court,  it  was  held  that  the  assignee  was  not  liable 
on  the  covenants  contained  in  the  lease. *^ 

§207.     Liability  of  assignee  of  a  part  interest  in  lease. 

Where  the  lessee  assigns  only  a  part  of  the  lease,  as  an  un- 
divided fourth  part,  and  he  and  the  assignee  operate  the  lease 
together  as  partners,  the  liability  of  the  assignee  may  be  broader 
than  it  otliei-wise  would  have  been.**  Thus  a  "\\Titten  assign- 
ment of  an  undi\aded  one-half  of  a  lessee's  interest  in  an  oil 
and  gas'  lease,  together  with  his  entire  gas  right  therein,  was 
held  to  make  the  assig-nee  a  joint  owner  of  the  lease,  and  jointly 
liable  thereunder  with  the  original  lessee.***  The  court  was  also 
of  the  opinion  that  the  assignee  of  a.  one-half  or  other  distinct 
interest  in  the  lease  was  jointly  liable  for  the  performance  of  a 
covenant  therein  to  sink  an  oil  well  or  pay  a  monthly  rental. 

46  Smith  V.  Munliall,   139  Pa.   St.  4s  Boydston,  v.   Meacham,   28   Mo. 

253;   21  Atl.  Rep.  735.     See  Breck-  App.  494. 

enridge    v.    Parrott,    15    Ind.    App.  ^^  Jackson  v.  O'Hara,   183  Pa.  St. 

411;    44   X.   E.  Pep.   66.  233;    38   Atl.   Rep.    624. 

*~  Heller  v.  Dailey,  28  Ind.  App. 
555;    63   X.   E.   Rep.  490. 


238  OIL    AND    GAS. 

The  assignee  of  an  undivided  interest  of  a  partner  in  the  usual 
oil  or  gas  lease  takes  it  subject  to  the  partnership  debts.'^*' 

§208.     Liability  of  occupier  under  unassi^ed  lease. 

If  the  lessee  merely  permit  one  to  occupy  the  leased  premises, 
such  occupier  is  not  liable  to  the  lessor  for  the  rent,  nor  for 
use  and  occupation  of  the  premises ;  but  if  the  occupier  has  an 
agreement  for  an  assignment  of  the  lease,  and  he  call  upon  the 
lessee  to  make  his  agreement  good,  then  the  lessor  may  look  to 
the  occupier  for  the  rents  and  performance  of  the  covenants 
falling  due  during  the  time  he  is  in  possession  of  the  prem- 
ises.^^ 

§209.     Assignee  not  taking  possession  liable. 

The  assignee  of  an  oil  lease  cannot  escape  liability  on  the 
ground  that  he  never  took  actual  possession,  nor  commenced 
loperations  on  the  leased  premises  without  fault  of  the  lessor. 
This  is  true  according  to  the  greater  number  of  authorities.^" 
This  is  2>articularly  true  of  the  ordinary  oil  or  gas  lease.  In 
speaking  of  an  instance  where  possession  had  not  been  taken 
under  an  oil  lease  assigned,  the  court  used  the  following  lan- 
guage :  "  Whatever  may  be  the  rule  as  to  an  ordinary  lease, 
where  the  subject  matter  is  susceptible  of  actual  possession  and 
physical  enjoyment,  as  to  rights  created  by  leases,  such  as  this, 
where,  until  the  well  is  completed,  there  can  be  no  further  en- 
joyment than  the  possession  of  the  right,  which  may  be  exer- 

tjo  Chamberlain  v.  Dow,  16  W.  N.  Kaym.  367;   Babcock  v.  Scoville,  .56 

C.  532.  111.   461;    Board   v.    Boatman's   Ins. 

51  Walters  v.  Northern  Coal  Min-  Co.,  5  Mo.  App.  91;  Smith  v.  Brin- 
ing Co.,  25  L.  J.  Ch.  (N.  S.)  633;  ker,  17  Mo.  148;  Willi  v.  Dryden, 
6  De  G.  M,  and  G.  629;  26  L.  T.  52  Mo.  319;  University  of  Vermont 
167;  4  W.  R.  140;  2  Jur.   (N.  S.)  1.  v.' Joslyn,   21    Vt.    52;    Damainville 

52  Edmonds  v.  Mounsey,  lo  Ind.  v.  Mann,  32  N.  Y.  197;  Carter  v. 
App.  399;  44  N.  E.  Rep.  196;  Wal-  Hammett,  18  Barb.  608;  Fennell  v. 
ton  V.  Cronly.  14  Wend.  63;  Wil-  Guffey.  155  Pa.  St.  38;  26  Atl.  Rep. 
iiams  V.  Bosanquet,  1  Brod.  and  785;  Heller  v.  Dailey,  28  Ind.  App. 
Birg.    238;    Burton    v.    Barclay,    7  555;   63  N.  E.  Rep.  490. 

Bing.    745;    Cook   v.   Harris,    1    Ld. 


ASSIGN MEXT   OF   LEASE. 


2S9 


cised  at  will,  the  author ities  bearing  directly  upon  the  propusi- 
tion  involved,  authorizes  us  to  declare  that  the  obligations  of 
the  assignees  are  not  postponed  until  the  actual  entry  upon  the 
land."  '' 

§210.     Several  successive  assignees. 

If  there  be  several  successive  assignees,  each  will  be  liabTe 
for  the  perfonnance  of  the  covenants  or  agi'eements  contained 
in  the  lease  which  matured  or  required  ]TerforTnancc  while  he 
was  in  possession  or  enjoying  the  estate,  or,  in  other  words,  so 
long  as  he  held  the  lease.^* 

§211.     Lease  not  executed  by  lessee,  but  possession  taken  under 
the  lease,  effect. 

"  It  can  make  no  difference  in  principle  that  the  lease  is  not 
executed  by  the  person  to  whom  the  demise  is  made  —  excejit 
that  (in  such  a  case)  the  landlord  may  not  be  able  to  maintain 
an  action  of  covenant ;  but  if  the  person  to  whom  the  demise 
is  made  accepts  the  lease,  either  by  occupying  the  demised 
pToperty  himself  or  by  |>ermitting  others  (as  his  nominees  or 
as  his  cestuis  que  trustent)  to  do  so,  tlie  non-execution  of  the^ 
instrument  of  demise  will  not  prevent  the  lessor  from  recovering" 
the  rent  l)y  distress  or  by  action  of  debt  against  the  lessee.  Of 
course,  where  the  demise  is  made  to  a  ]5erson  who  neither  ex- 
ecutes the  lease  nor  adopts  it  by  entry  or  otherwise,  he  (the' 
lessee)  is  a  mere  stranger  against  whom  the  landlord  can  have 
no  rights ;  and  if  (in  such  last-mentioned  case)  other  persons'- 
enter  claiming  to  be  the  nominees  or  the  cestuis  que  trustent  of 
such  non-executing  and  non-adopting  lessee,  the  landlord's  rem- 
edy must  be  by  distress  or  {semhle,  by  action  of  trespass),  and 
is  not  either  in  debt  or  on  covenant."  ^^ 

53  Edmonds  v.  Mounsey,  supra.  Morr.  Min.  Rep.  152 ;  Heller  v.  Dai- 

54  Bradford  Oil  Co.  v.  Blair,  113  ley,  28  Ind.  App.  555;  63  N.  E- 
Pa.  St.  83;  4  Atl.  Rep.  218;  Wash-       Rep.  490. 

in^on,  etc..  Gas  Co.  v.  Johnson,  123  ss  Bainbridge  on  Mines   (5th  ed.)^ 

Pa.   St.   576:    16   Atl.   Rep.   799;    11       p.  294. 


240  OIL    AND    GAS. 

^212.     Lessee  released  by  substitution  of  assignee. 

But  a  lessee  may  be  released  bv  tlie  art  of  the  lessor  in  ac- 
cepting and  substituting'  the  assignee  in  place  of  the  lessee. 
Thus  in  an  Indiana  case  it  was  said  by  the  court:  "'  There  has 
been  a  diversity  of  decision  both  as  to  the  facts  which  may 
cojistitute  a  surrender  by  operation  of  law  and  as  to  the  legal 
principles  applicable  thereto.  We  will  not  undertake  to  dis- 
cuss the  general  subject,  but  will  confine  our  observations  to  the 
instance  of  a  substitution  of  tenants  and  to  the  case  where  there 
has  been  an  assigiiment  by  the  lessee  to  a  third  pers^)n.  If  the 
law  will  imply  a  surrender  in  a  given  case,  it  would  seem  to 
be  reasonably  clear  that  the  implication  will  arise  from  the 
acts  of  the  parties,  and  will  not  be  based  upon  proof  of  an  oral 
agreement  between  lessor  and  lessee.  The  one,  whether  lessor 
or  lessee,  against  whom  such  a  surrender  is  asserted  by  the 
other,  must  have  been  a  party  to  some  action  from  which  a 
surrender  may  pro])erly  be  presumed  by  the  court.  The  sur- 
render should  be  indicated  by  acts.  We  Avill  not  pause  to  seek 
to  reconcile  the  various  opinions  as  to  the  principle  of  law  on 
which  this  conclusion  of  the  court  should  proceed.  If  the  les- 
see assign  to  a  third  person,  and  the  lessor  accept  rents  from 
the  assignee  in  peaceable  possession,  it  may  l>e  presumed,  from 
this  act  of  the  lessor  in  accepting  the  rent  due  from  the  lessee 
through  hands  of  another  in  jx)ssession,  that  tlie  lessor  acquiesces 
in  the  assignment;  but  such  conduct  does  not  necessarily  indi- 
cate that  the  lessor  has  been  a  party  to  the  creation  of  a  new 
tenancy.  Such  facts  may  constitute  evidence  of  an  assigniment, 
but  not  of  a  surrender,  and  if  a  surrender  may  be  established  by 
the  further  proof  of  a  parol  agreement  between  the  lessor  and 
the  lessee,  to  which  the  assigiiee  was  not  a  party,  this  would  be 
basing  the  essential  fact  constituting  the  surrender  upon  parol 
evidence  of  an  express  contract,  and  not  deriving  it  by  act  and 
o|>eration  of  law.  In  Frank  v.  Maquire,*^^  it  is  said:  'it 
surely  is  not  necessary  to  cite  cases  to  prove  that  a  tenant  is 
bound  by  his  express  contract  to  pay  rent,  even  after  he  has 

*55  42  Pa.  St.  82. 


ASSIGNMENT    OF    LEASE.  241 

assigned  the  term  with  his  huullord's  assent,  and  thongli  tlie 
landlord  has  accepted  the  assignee  as  his  tenant  and  received 
rent  from  him.'  In  Creveling  v.  De  Hart,  ^"  an  action  by  a 
lessor  to  recover  from  the  lessee  for  non-payment  of  rent,  a 
plea  was  held  insufficient  which  stated  that  the  lessee  entered 
into  negotiations  with  a  third  party  named,  and  notified  the 
lessor,  who  encouraged  the  lessee  to  sell  and  assign  the  lease  to 
a  third  party,  and  therefore  the  lessee  dnly  assigned  and  con- 
veyed tlie  same  to  sncli  third  party,  who  entered  upon  the  de- 
raised  premises  and  was  dnly  accepted  by  the  lessor  as  his 
tenant,  and  that  lessor  collected  rent  from  the  assignee,  and 
recovered  a  judgment  for  rent  which  afterwards  fell  due.  It 
was  held  that  to  make  the  plea  show  snrrencler  in  law  it  needed 
an  averment  that  the  assiivnee  was  substituted  in  place  of  the 
original  lessee  with  the  intent  on  the  uart.  of  the  parties  to  the 
demise  to  annul  its  obligations.  In  Grommes  v.  Trust  Co.,*^" 
is  the  following  language:  '  ISTor  did  the  sale  of  the  saloon 
by  the  tenant  to  Ruse,  nor  the  taking  of  possession  by  Ruse, 
nor  the  acceptance  of  rent  from  the  latter  by  tlie  landlord, 
operate  as  a  discharge  of  the  grantors.  The  assignee  of  a  lease- 
hold estate  is  liable  for  rent  according  to  the  terms  of  tlie  lease, 
and  the  fact  of  his  liability  after  the  assignment  does  not  dis- 
charge the  lessee  from  his  covenant  to  pay  rent.  In  case  the 
rent  is  not  paid  by  the  assignee  as  it  becomes  due,  an  action 
may  be  sustained  against  the  lessee  therefor;  and  it  makes  no 
difference  in  tliis  respect  that  the  lessor  may  have  received 
rent  from  the  assignee,  and  accepted  him  as  tenant  of  the  prem- 
ises. Where  there  is  an  express  covenant  to  pay  rent  for  a 
term  of  years,  the  mere  acceptance  of  rent  by  the  lessor  from 
the  assignee  of  the  lessee  does  not  discharge  the  lessee.  The 
contract  of  the  latter  continues  in  force,  notwitlistanding  he 
may  have  parted  with  his  interest  in  tlie  estate,  unless  tlie  lessor 
enters  into  such  stipulations  with  the  assignee  as  to  accept  him 
as  sole  tenant  and  absolve  the  original  lessee.  If  there  be  not 
a  substitution  of  the  assignee  in  place  of  the  original  lessee,  and 

56  54  N.  J.  Law  338;  23  Atl.  Rep.  *56  147    111.    C34-648;     35    N.    E. 

611.  Rep.  823;   37  Am.  St.  Rep.  248. 


242  OIL    AND    GAS. 

a  clear  intent  to  make  a  new  contract  with  the  former  and  dis- 
charge the  latter  from  furtJier  liability  nnder  the  lease,  both 
will  be  held  liable  to  the  lessor.  We  do  not  hold  it  necessary  to 
show  an  express  contract  between  tlie  lessor  and  the  assignee, 
but  it  seems  to  be  reqnisite  to  show  that  the  landlord,  by  his 
conduct,  as  between  himself  and  the  assignee,  does  not  hold  the 
latter  merely  to  the  obligation  of  an  assignee  of  the  term  in 
possession,  but  has  assumed  an  attitude  inconsistent  with  the 
continuance  of  the  contract  relation  between  him  and  the  orig- 
inal lessee,  and  has  treated  the  assignee  as  his  own  tenant  by 
sul)'Stitution."  '''  There  must  be  a  surrender,  either  in  fact  or 
by  operation  of  law,  of  the  premises  by  tlie  lessee  and  a  substi- 
tution of  his  assig-nee,  to  release  the  former  from  his  liability 
on  the  covenants  of  the  lease.  That  result  must  be  attained 
before  the  lessee  is  free  from  liability.*^^ 

§213.     Trustee  of  lessee  and  not  his  cestuis  que  trustent  liable. 

"  In  Walter  v.  Xorthem  Coal  Mining  Co.,^^  where  certain 
(coal)  mines  had  been  leased  to  a  trustee  for  tlie  defendant 
company  at  a  fixed  or  certain  rent,  and  at  a  tonnage  (or  ten 
tale)  rent  beyond ;  and  the  term  was  for  forty  years,  determin- 
able by  the  lessee  at  the  end  of  every  third  year  by  giving  one 
year's  previous  notice ;  and  the  defendant  company  entered  into 
possession  and  worked  the  mines  under  the  lease  for  a  little 
over  a  year,  and  then  abandoned  the  mines  as  unprofitable  — 
never  having  paid  any  rent,  or  given  any  notice  to  determine 
the  term ;  and  about  nine  years  afterwards  the  company  went 
into  liquidation,  and  the  liquidator  gave  the  notice  to  determine 
the  term,  protesting  also  that  the  lease  was  not  a  good  lease ; 

^•T  Heller   v.   Dailcy,   28    1ml.   App.  W.   85;    Lynch  v.  I  ynrOi.   (>   Irish   L. 

5.-).-,:    63   N.   K.   Rep.  400.  Rop.    131;    Lewis   v.    Brooks,    8    Up. 

On    the    question    of    suhstitution.  Can.   Q.  B.    576. 

see    Way    v.     Reed,     (i     Allen    364;  *5T  Donahoe  v.   Rich,  2   Ind.  App. 

Hoerdt  v.   Ilalme.  01    111.   App.  514;  540;  28  N.  E.  Rep.  1001. 

Detroit  Pharmaeal   Co.  v.  P.nrt.   124  r.s  25  L.  J.   Ch.   633;    5   De  G.  M. 

IMich.    220;    82    N.    W.    Rep.    893;  and  G.  629;  26  L.  T.  167;  4  W.  R. 

I>evering   v.   Langley,    8    INIinn.    107  140;    2   Jur.    (N.   S.)    1. 
(Gil.   82);   Lyon  v.  Reed,   13   :\I.   & 


ASSIGNMENT   OF  LEASE.  243 

:and  tlie  plaintiff  (tlie  lessor)  thereupon  commenced  this  action 
to  recover  from  the  company  the  alleged  arrears  of  rent,  alleg- 
ing that  it  was  a  debt  in  equity  of  tlie  company  —  the  court 
said,  tliat  the  lessor  should  have  sued  the  trustee-lessee,  and  not 
-the  company  (the  cestui  que  trust),  the  relation  being  a  purely 
legal  relation."  *"^ 

§214.     Cestuis  que  tmstent  may  be  liable. 

"  If  there  should  be  an  express  contract  between  the  cestuis 
que  trustent  and  the  landlord,  that  he  (the  landlord)  should 
grant,  and  that  they  (the  cestuis  que  trustent)  or  their  trustees 
should  accept,  the  lease,  tlie  landlord  would  in  that  case  be  en- 
titled to  a  specific  performance  of  the  contract.,  and  the  cestuis 
quyc  trustent  would  be  compelled  to  fulfil  their  contract,  and 
(either  by  themselves  or  by  their  trustees)  to  execute  a  counter- 
part of  the  lease,  the  landlord  having  first  executed  the  lease  — 
and  after  such  lease  and  counterpart  had  been  executed,  the 
legal  relations  above  enumerated  would  apply  as  between  the 
landlord  and  his  lessee  (and  the  assignee  of  the  lessee)  — but 
otherwise  tlie  cestuis  c^ue  trustent  would  remain  exempt  as  be- 
fore, the  lessee  only  (or  his  assignee)  being  and  remaining 
liable  to  the  landlord."  ''' 

§215.     Liability  of  assignee  to  his  assignor. 

Between  tlie  assignee  and  his  assignor  tliere  is  such  a  privity 
of  contract  as  renders  the  latter  liable  to  the  former,  without 
an  express  contract  to  that  effect,  for  a  failure  to  cany  out  the 
covenants  or  agreements  of  the  lease.  If  the  lessee  (the  as- 
:sigTior)  has  to  pay  the  rent  falling  due  after  the  assigTiment,  he 
Tnay  recover  from  the  assignee  the  amoimt  paid ;  and  so  if  the 
lessee  has  to  eavry  out  any  of  the  covenants,  performance  of 
which  was  to  be  made,  by  the  terms  of  the  lease,  after  the  time 
of  the  assignment,  the  assigTiee  will  be  liable  to  him  for  his 

*58  Bainbridge     on     Mines      {5th  so  p.ainbridge  on  Mines   (5th  ed.), 

■ed.),   p.   294.  p.   204. 


244  OIL    AND    GAS. 

failure  to  perform  such  covenants."*'  So  the  first  assignee  is 
liable  for  tlie  rents  accruing,  or  the  covenants  to  be  carried  out, 
after  he  has  assigned  the  lease ;  and  if  he  has  been  compelled 
to  paj  or  carry  out  he  may  recover  the  amount  paid  from  his 
assignee;  so  the  assignor  (tlie  lessee)  may  sue  such  remote  as- 
signee for  default  made  during  the  time  he  holds  the  lease.*^^ 
There  is  an  implied  promise  on  the  part  of  each  successive  as- 
signee of  a  lease  to  indemnify  the  lessee  against  any  breach  of 
a  covenant  in  a  lease  committed  by  the  assignee  during  the 
continuance  of  his  (the  assignee's)  estate  —  which  implied 
promise  is  additional  to  (and  not  excluded  by)  the  express 
covenant  of  indemnity  which  each  assignee  enters  into  with  his 
o^vn  assignor.''"  The  contract,  however,  between  the  lessee  (the 
assignor)  and  the  assignee  may  be  such  as  to  modify  or  relieve 
the  latter  from  liability  to  the  former,  though  it  cannot  relieve 
such  assignee  from  liability  to  the  lessor  for  rents  or  royalties, 
or  the  like,  accniing  during  the  time  he  holds  the  lease.*'^  But 
where  a  second  assignee  of  tlie  lease  was  to  pay  a  cash  sum  as 
the  consideration  for  the  assignment,  and  an  additional  sum  to 
be  paid  if  oil  be  found  on  tlie  premises,  it  was  held  that  the 
lessor  could  not  recover  such  additional  sum,  after  oil  was 
found  by  him ;  for  the  reason  tliat  it  was  merely  a  bonus  to  be 
paid  to  tlie  first  assignee  and  not  a  covenant  to  run  with  the 
land.*'*  By  no  arrangement  between  the  lessor  and  tlie  assignee 
can  tliey  lessen  tlie  liability  of  the  latter  to  the  lessee,  or  ren- 
der the  latter's  rights  less  valuable.  Thus  where  a  first  lessee 
sublet  a  portion  of  his  lease,  and  the  sublessee  agreed  to  drill 
tw^o  wells  and  pa}^  the  first  lessee  one- fourth  of  the  product 
f roni- tlieni ;  and  after  completing  one  well,  the  sublesseo  pro- 
oured  a  lease  direct  from  the  owner,  which   did  not  require 

00  Burnett  v.  Lynch,  5  B.  and  C.       Bright,    180    Pa.    St.    181;    40    Atl. 
.580;   8  D.  and  R.   368;   4  L.  J.    (0.        Rep.   414. 

S.)    K.   B.   274;    Humble  ■  v.   Langs-  caMoule  v.  Garrett,  L.  R.  5  Exch. 

ton,  7  M.   and  W.  517;   Steward  v.  132;    39   L.   J.   Exch.   69;    22   L.   T. 

Wolveridge,    9    Bing.    60;    Heller   v.  343;  18  W.  R.  697. 

Dailey,  28  Ind.  App.  .555;   63  N.  E.  os  Fisher   V.    Guffey.    193    Pa.    St. 

■Rep.  490.  393;  44  Atl.  Rep.  459. 

01  Brinkley  v.  Hambleton,  67  i\Id.  g4  Fisher  v.  Guffey,  supra. 
169;    8    Atl.    Rep.    904;    Knupp    v. 


ASSIGXMEXT   OF   LEASE.  245 

two  wells  to  be  dug,  nor  the  payment  of  royalties  if  they  were 
dug,  it  was  lield  that  this  second  lease  was  a  fraud  upon  the 
first  lessee. "^^ 

§216.     Assignor  liable  on  account  of  lease  as  a  surety. 

The  assignment  of  the  lease-  does  not  release  the  assignor  from 
the  fulfillment  of  the  covenants  or  engagements  contained  in 
it;  and  while  tlie  assignee  continues  to  enjoy  it,  such  assignor 
is  in  the  jwsition  towards  him  of  a  surety,  and  such  assignee  is 
regarded  in  fact  as  the  principal  debtor."*'  Even  though  the 
lessor  accept  the  assignee  as  a  tenant  that  will  not  release  tlie 
lessee  from  his  covenant  to  pay  rent  or  royalties;  but  his  lia- 
bility continues  by  privity  of  contract  until  the  lease  shall 
terminate. *'"  The  collection  of  rent  from  the  assignee  or  sub- 
tenant will  not  amount  to  a  surrender.*'^  iS'or  can  the  assignee 
relieve  himself  from  liability  for  a  year's  rent  by  surrendering 
the  lease  before  the  end  of  the  year,  for  which  the  rent  is  to 
be  paid,  because  of  the  failure  to  complete  an  oil  or  gas  well, 
in  the  absence  of  any  agreement  to  release  or  acquit  the  pay- 
ment."^ 

65  Akin  V.  Marshall  Oil  Co.,  188  quire.  42  Pa.  St.  77;  Heller  v.  Dai- 
Pa.  St.  602;  41  Atl.  Rep.  748.  ley,  28   Ind.  App.  .55.5 ;   63   N.  E.  Rep. 

66  Burnett  v.  Lynch,  5  B.  and  C.  490;  Harris  v.  Heachman.  62  la. 
589;  8  D.  and  R.  368;  4  L.  J.  (O.  411;  17  X.  W.  Rep.  -592;  Shaw  v. 
S.)  K.  B.  274;  Humble  v.  Langston,  Patridge,  17  Vt.  626;  Way  v.  Reed, 
7  M.  and  W.  517;  Washington,  etc.,  6  Allen  364;  Hoerdt  v.  Hahne,  91 
Gas  Co.  V.  Johnson,  123  Pa.  St.  576;  El.  App.  514;  Detroit  Pharmacal 
16  Atl.  Rep.  799;  16  Morr.  Min.  Co.  v.  Burt,  124  Mich.  220;  82  N. 
Rep.  165;  Heller  v.  Dailey.  28  Ind.  W.  Rep.  893;  Charlees  v.  Froebel, 
App.  555;  63  N.  E.  Ptep.  490;  Con-  47  ^Mo.  App.  45;  Lewis  v.  Brooks, 
solidated  Coal  Co.  v.  Peers.  150  111.  8  Up.  Can.  Q.  B.  576;  Levering  v. 
344;    37   N.   E.   Rep.   937;    Sanders  Langley,   8  Minn.  107. 

V.  Sharp.   153  Pa.  St.  555;   25  Atl.  cs  Jones  v.   Barnes,   45   Mo.   App. 

Rep.   524.  590. 

67Bonetti  v.  Treat,  91  Cal.  223;  69  Breckenridge  v.  Parrott.  15 
27  Pac.  Rep.  612;  Creveling  v.  De-  Ind.  App.  411;  44  N.  E.  Rep.  66. 
Hart,  54  N.  J.  L.  338;  23  Atl.  Rep.  A  lessee  of  a  gas  lease  was  to 
611;  Fisher  v.  Milliken.  8  Pa.  St.  pay  a  certain  royalty.  He  assigned 
111;  Grommes  v.  St.  Paul  Trust  an  undivided  one-half  interest  there- 
Co.,  147  111.  6.34;  35  N.  E.  Rep.  823 ;  in  to  a  corporation,  to  hold  sub- 
37  Am.  St.  Rep.  248;  Frank  v.  Ma-  ject  to  the  royalty  contained  in  the 


246  OIL    AND    GAS. 

§217.     Sublease  —  liability  of  sublessee. 

A  sublease  is  always  less  tlian  the  lease  of  the  sublessor;  it 
is  only  a  part  of  the  lease.  Or,  in  other  words,  if  die  lessee 
parts  with  all  his  estate  except  such  as  he  reserves,  however 
:small  the  reservation  may  be,  this  amounts  to  a  sublease ;  while 
if  he  part  with  the  whole  leasehold  estate,  it  will  be  an  assign- 
ment. Some  interest  in  the  part  of  the  premises  sublet  must 
remain  in  the  lessee ;  henoe  if  he  assign  a  distinct  portion  of  the 
premises  —  as  one-half,  by  metes  and  bounds  —  it  is  an  assign- 
ment and  not  a  subletting.^"  If,  however,  as  an  illustration,  a 
lease  be  for  ten  years,  and  the  lessee  should  demise  a  distinct 
part  or  the  whole  of  it  for  six  years,  that  would  be  a  subletting 
and  not  an  assignment.^^  Unlike  the  assignee  of  a  lease,  there 
is  no  privity  of  estate  between  the  original  lessor  and  a  sub- 
lessee, and  the  latter  is  not  liable  to  the  former  for  any  part  of 
the  rent  due  him  nor  for  the  performance  of  the  covenants  in 
the  original  lease.^"  But  the  terms  of  the  original  lease  must 
be  carried  out,  either  by  tlie  lessee  or  the  sublessee,  or  the  orig- 
inal lessor  will  have  a  right  to  terminate  the  lease,  or  have 
right  of  action  for  damages,  as  the  case  may  be.^^  Of  course,  if 
a  sublessee  is  accepted  by  the  original  lessor  as  his  tenant,  he 
then"  becomes  liable  to  him  tlie  same  as  if  he  had  his  lease  di- 
rectly from  such  lessor.''^*  If  the  original  lease  contain  a  pro- 
hibition against  subleasing,  it  will  not  prevent  an  assignment ; 
and  so,  vice  versa."^^     If  a  subletting  be  prohibited  by  the  orig- 

lease,    and    thereafter    assigned    the  ^i  Post  v.  Kearney,  2  N.  Y.  394; 

other  one-half  interest  to  a  second  Pingrey    v.    Watkins,    15    Vt.    479; 

company.     Tlie      first      corporation  Collins  v.  Hasbrouck,  56  N.  Y.  157; 

operated   the   land  under   an  agree-  15  Am.  Rep.  407. 

ment  to  account  to  the  second  com-  72Halford  v.  Hatch,  Dougl.   187; 

pany   for   one-half   of  the  proceeds,  Dartmouth     College    v.     Clough,     8 

the  latter  company  to  pay  one-half  N.   H.   22;    McFarlan  v.   Watson,   3 

of  the  expenses.     It  was  held  that  N.  Y.   286;   Gibson  v.  Mullican,   58 

the  first  company  was  liable  for  the  Tex.  430;   Jennings  v.  Alexander,  1 

■entire  royalty.    Burton  v.  Forest  Oil  Hilt.   (N.  Y. )   154;  Fulton  v.  Stuart, 

€o.    (Pa.),  54  Atl.  Rep.  266.  2  Ohio  215. 

70  Palmer  v.  Edwards,  Doug.  187,  t.'?  Elms  v.  Randall,  4  Dana  519. 

note;    Sands   v.    Hughes,    53   N.    Y.  74  Stimmel    v.    Waters,    2    Bush, 

287;   Bedford  v.  Terhune.   30  N.  Y.  282. 

457 ;    Boardman    v.    Wilson,    L.    R.  75  Greenway  v.  Adams,  12  Ves.  Jr. 

4  C    B.  57.  395:   Boekover  v.  Post,   25  N.  J.  L. 


ASSIGNMENT   OF   LEASE. 


247 


inal  lease,  a  violation  of  it  in  this  respect  will  give  the  original 
lessor  a  riglit  to  have  such  original  lease  canceled ;  ^"^  which, 
of  course,  would  carry  down  with  it  the  sublease.  But  the  lease 
is  not  avoided  merely  because  tliere  has  been  an  assignment  or 
subletting  contrary  to  its  provisions;  it  is  merely  voidable,  at 
the  option  of  the  original  lessor."  If  the  lessor  accepts  rent 
of  the  assignee  or  sublessee,  after  the  assignment  or  subletting, 
with  knowledge  of  such  assignment  or  subletting,  he  will  waive 
the  right  to  re-enter  and  declare  tlie  original  lease  avoided.'^ 
A  sale  by  the  lessees  of  an  oil  or  gas  well,  of  all  the  oil  or  gas 
pumped  or  flowing  from  it,  to  a  company  taking  charge  of  it 
and  conducting  the  oil  or  gas  off  the  premises,  is  not  an  assign- 
ment but  a  subletting."''  In  such  an  instance,  equity  has  power 
to  enteitain  a  bill  for  discovery  to  ascertain  the  rights  and  rela- 
tions of  th^  parties  to  the  lease  and  sublease,  and  to  compel  an 
accounting  for  the  profits  from  the  sale  of  oil  and  gas.""  Under 
a  right  to  sublet  and  subdivide,  a  lessee  may  release  a  part  of 
the  premises  set  off  in  i>artition  to  one  of  several  tenants  in  com- 
mon, and  retain  the  lease  in  operation  u]X)n  the  remainder  of 
the  land.«^ 


285;  Lynde  v.  Hough,  27  Barb.  415; 
Hargrave  v.  King.  5  Ired.  Eq.  430. 

76  Stimmel  v.  Waters,  2  Bush. 
282. 

TT  Collier  v.  Cunningham.  2  Ind. 
App.  254;  28  X.  E.  Rep.  341;  Jack- 
son V.  Groat.  7  Cow.  285;  Cooney 
V.  Hayes.  40  Vt.  478 ;  Burnes  v.  Mc- 
Cubbin,  3  Kan.  221;  Eldredge  v. 
Bell,  64  la.  125;  19  X.  W.  Rep.  879; 
Khattuck  V.  Lovejoy,  8  Gray  204. 


7s  O'Keefe  v.  Kennedy,  3  Cush. 
325;  Heeter  v.  Eckstein,  50  How. 
Pr.  445;  ilurray  v.  Harway.  50  X. 
Y.  337. 

79  Akin  V.  Marshall  Oil  Co.,  188 
Pa.  St.  602;  41  Atl.  Rep.  748. 

80  Ibid. 

81  Blair  v.  Xorthwestern,  etc.,  Co., 
12  Ohio  Cir.  Ct.  Rep.  78;  5  Ohio  C. 
D.  C.  G20. 


CHAPTER  Vll. 

RENTS  AND  ROYALTIES. 

§218.  Limitations   of  chapter. 

§219.  Construction  of  leases. 

§220.  Various  methods  of  fixing  rents  or  royalties. 

§221.  A  royalty  is  rent. — ''  Mining  rent." 

§222.  Definition  of  rent  and  rent  charges. 

§223.  Payment  so  much  per  well. 

§224.  Royalty,  percentage  of  profits  or  income. 

§225.  Payment  of  operating  expenses  first. —  Free  gas. 

§226.  Free  gas. 

§227.  Roj'alty  in  gas  or  oil  used  to  operate  leased  premises. 

§228.  When  royalty  due. —  Removal  of  oil  from  premises. 

§229.  When  rent  is  due  for  failure  to  develop  land. 

§230.  To  whom  payable. —  Joint  lessors. 

§231.  Damages  for  failure  to  deliver  lessor  his  share. 

§232.  Interest  on  royalties. 

§233.  Waiver. —  Parol  evidence. 

§234.  Surrender. —  Tract  "  retained." 

§23.5.  Interdependent   conditions. 

§236.  New  lease. 

§237.  Termination  of  lease  by  failure  to  keep  its  terms. 

§238.  Lessee    cannot   avoid    payment   by   taking   advantage    of   forfeiture 

clause. 

§239.  Forfeiture  clauses  and  liability  for   rent. 

§240.  Surrender  of  lease  necessary  to  escape  liability  for  rent. 

§241.  Eviction. 

§242.  Rent  to  be  paid  if  well  not  drilled. 

§243.  Minimum  production  allowed. 

§244.  Consideration  for  lease  may  be  purchase  money. 

§245.  Consideration  for  grant  part  of  minerals,  creates  an  exception. 

§24G.  One  well  draining  two  tracts  of  land. 

§247.  Oral  change  of  lease  discharging  or  changing  rents. 

§248.  Failure  of  oil,  royalty  ceases. 

8249.  Rent  for  exhausted  well. —  Flooded  well. 

§250.  Instances  of  lessee's  liability. 

§251.  Account  rendered. 

§252.  How  collected. 

§253.  Lien  of  royalty  accruing  during  receivership. 

§254.  Assignment  of  ]ea,se  does  not  carry  oil  in  tank  on  premises. 

248 


RENTS  AND  ROYALTIES.  249 


§218.     Limitations  of  chapter. 

The  discussion  of  the  subject  of  Rents  and  Royalties  in  this 
chapter  must  necessarily  be  limited,  in  order  to  avoid  repeti- 
tions. The  questions  involved  here  are  so  intimately  bound  up 
with  the  subjects  discussed  in  other  chapters,  that  it  is  impos- 
sible to  discuss  all  the  cases  without  unnecessarily  increasing 
the  size  of  this  volume.  Under  the  chapters  on  "  Duration  of 
Leases,"  "  Mortgagor  and  Mortgagee,"  "  Life  Tenants,"  "  For- 
feitures," "  Assig-nments,"  will  be  found  many  cases  on  the 
subject  of  Rents^and  Royalties,  that  are  pertinent  to  the  sev- 
eral subjects  of  those  chapters. 

§219.     Construction  of  leases. 

In  discussing  the  right  of  a  lessor  to  rent  or  royalties,  it  must 
be  borne  in  mind  that  oil  and  gas  leases  are  usually  construed 
favorably,  in  this  respect,  to  the  lessor,  if  there  be  a  doubt  con- 
cerning the  right  to  rent  or  royalty,  and  its  amount.     The  gen- 
eral rule  is  undoubtedly  that  a  deed  is  construed  most  strongly 
against  the  grantor  and  in  favor  of  the  grantee.     But  such  is 
not  the  case  in  an  instance  of  an  oil  or  gas  lease ;  and  the  reason 
for  this  arises  out  of  the  well  kno^vn  transactions  of  oil  and 
gas  operators.     These  contracts  are  looked  upon  somewhat  m 
Sie  same  light  as  contracts  of  insurance.     By  long  experience 
insurance  compmies  have  been  enabled  to  draw  a  policy  which 
is  often  difficult  to  detennine  just  what  their  liability  may  be. 
They  have  tiieir  attorneys  who  have  spent  years  in  studying 
contracts  of  insurance  and  the  decisions  of  the  courts,  until 
they  have  become  thoroughly  versed  in  all  phases  of  such  con- 
tracts.    On  the  other  hand,  the  insured  is  usually  without  ad- 
vice when  entering  into  a  contract  of  insurance,  and  he  is  almost 
universally  ignorant  of  the  rules  of  law  applicable  to  such  obli- 
gations.    To  such  an  extent  is  this  true  that  the  courts  have 
adopted  a  construction,  in  cases  of  doubt  or  obscurity,  favorable 
to  the  insured.     WTiat  is  true  of  insurance  contracts,  may  be 
said  to  be  true  of  oil  or  gas  leases   fif  not  of  mining  leases) 
The  lessor  usuallv  knows  nothing  of  tlie  law  applicable  to  such 


250  OIL    AND    GAS. 

instruments;  while  the  operator  is  usually  well  informed.  Years 
of  experience  have  shown  the  operator  how  to  draw  a  lease  giving 
him  many  advantages,  of  which  the  lessor  has  not  even  tlmu^lil. 
For  this  reason  the  courts  have  adopted  a  rule  to  the  ctreet  to 
construe  an  oil  or  gas  lease  most  favorably  to  the  lessor,  where 
its  teniis  can  be  so  construed  without  doing  violence  to  the  lan- 
guage used.^ 

§220.     Various  methods  of  fixings  rents  or  royalties. 

There  are  various  methods  in  vogue  in  fixing  the  rents  or 
royalties  that  shall  be  paid  for  a  mining  or  oil  lease.  Thus  the 
rent  may  be  (1)  a  fixed  sum ;  or  an  (2)  annual  or  other  period- 
ical Slim;  or  (3)  a  royalty  on  the  amount  of  the  minerals  or 
oil  mined  or  produced,  payable  at  fixed  intervals  or  times ;  or 
(4)  a  royalty,  not,  however,  less  in  the  aggregate  than  a  speci- 
fied sum  each  year;  or  (5)  a  royalty  accompanied  by  a  covenant 
to  mine  a  certain  minimum  amount  or  pay  a  certain  sum  there- 
on; or  (6)  in  case  of  a  gas  lease,  to  bore  so  many  wells  and  pay 
so  much  a  well,  or  forfeit  a  certain  sum  per  well  for  a  failure  to 
bore  the  required  number;  or  (7)  in  case  of  an  oil  lease,  to 
pay  a, certain  percentage  of  the  oil  taken  out  of  the  premises. 
It  is  believed  that  these  divisions  practically  cover  all  methods 
used  in  fixing  the  amount  the  lessee  shall  pay  tlie  lessor,  aside 
from  the  covenants  to  erect,  improvements  on  the  leased  lands, 
or  make  repairs,  or  develop  the  premises  leased. 

§221.     A  royalty  is  rent  —  "  Mining  rent." 

Royalty  is  another  term  for  rent,  but  is  limited  (except  such 
as  given  an  author  for  the  privilege  of  publishing  his  book,  or 
a  patentee  for  the  use  of  a  patent)  to  rents  due  for  the  right  or 
privilege  of  taking  minerals,  oil  or  gas  out  of  a  designated 
tract  of  land.  In  the  discussion  hereafter,  a  distinction  will 
be  drawn  between  "  rent "  as  such  and  "  purchase  money  '' 
under  an  instrument  selling  mineral  and  oil  beneath  the  surface 

iSteelsmith  v.  Gartlan,  45  W.  R.  A.  107;  Huggins  v.  Daley,  911 
Va.  27 ;   29  N.  E.   Rep.  978 ;   44  L.       Fed.  Rep.  606 ;  48  L.  R.  A.  .320. 


RENTS  AND  ROYALTIES.  251 

of  a  specified  tract;  and  in  siicli  an  instance  whatever  would 
not  be  a  "  rent  "  cannot  be  a  "  royalty,"  but  must  be  "  pur- 
chase money."  In  practice  the  temi  "  mining  rent  "  is  used 
to  designate  the  consideration  given  for  a  mining  lease,  whether 
such  lease  creates  a  tenancy,  conveys  a  fee,  or  grants  an  incor- 
poreal right  or  a  mere  license.  Its  true  significance  must  be 
read  or  determined  in  connection  with  the  rights  granted.^ 

§222.     Definition  of  rent  and  rent  charges. 

Rent  has  been  defined  as  "  a  certain  profit  issuing  yearly  out 
of  lands,"  as  "  return  to  the  landlord  for  their  annual  use."  ^ 
Again :  "  Rent  is  a  sum  stipulated  to  be  paid  for  the  actual 
use  and  enjoyment  of  another's  land,  and  is  supposed  to  come 
out  of  the  profits  of  the  estate."  *  A  more  extensive  definition 
is  as  follows :  "  Rent,  or  render,  reditus,  signifies  a  compensa- 
tion, or  return,  it  being  in  the  nature  of  an  acknowledgment  or 
recompense  given  for  the  possession  of  some  corporeal  in- 
heritance. It  must  be  a  certain  profit  issuing  out  of  lands  and 
tenements  corporal;  that  is,  from  some  inheritance  whereunto 
tlie  owner  or  grantee  of  rent  might  (anciently)  have  recourse 
to  restrain."  ^  A  rent  charge  has  been  defined  as  "  a  rent 
granted  out  of  lands  by  him  who  is  the  owner  thereof,  with  an 
express  clause  of  distress "  and  the  reason  assigned  for  this 
definition  is  because  the  lands  were  charged  with  the  distress, 
and  the  grantee,  without  the  clause,  had  no  right  of  distress, 
because  there  was  no  fealty  annexed  to  the  grant."  "  In  an- 
other case  it  is  said  that  a  "  rent  charge  is  a  rent  reserved  where 
the  landlord  has  no  reversionaiy  interest.  He  would  have,"  it 
was  said,  "  for  such  rent,  no  right  to  distrain,  unless  the  power 
be  contained  in  the  lease."  ^     And  a  rent  charge  has  been  distin- 

2  Where  royalty  on  coal  was  con-  4  Marsh  v.  Butterworth.  4  oMicJi. 
sidered   part    of   the   corpus   of  the       575. 

estate  and  not  a  profit  issuing  out  •''>  Van     Wicklen     v.     Paulson,     14 

of  it,  see  Duff's  Appeal,   21   W.   M.  Barb.  654.     See  Bloodworth  v.  Ste- 

C.  490;   Hope's  Appeal,  3  Ati.  Rep.  vens,     51     Miss.     475;     Zouche     v. 

23;   2  Cent.  Rep.  43;   33  Pittsb.  L.  Dalbaic   L.    B.    10   Exch.    177;    Peo- 

J.   (N.  S.)   270.  pie  V.  Van  Rensselaer,  8  Barb.  189. 

3  Boyd  V.  McCombs,  4  Pa.  St.  146.  e  Spencer  v.  Austin,  38  Vt.  258. 

7  Cornell  v.  Lamb,  2  Cow.  652.. 


252  OIL    AND    GAS. 

guished  from  an  annuity  by  saying  tliat  a  "  rent  charge  is  a 
burden  imposed  upon  and  issuing  out  of  lands,  whereas  an 
annuity  is  chargeable  only  upon  the  person  of  the  grantor."  * 
By  these  definitions  it  will  be  observed  that  rent,  strictly  speak- 
ing, is  not  a  part  of  the  real  estate,  but  is  profit  issuing  out  of 
it.  It  will  be  necessary  to  bear  these  definitions  in  mind  in 
determining  the  status  of  a  rent  or  royalty  reserved  for  the 
right  to  dig  minerals  or  take  oil  or  gas  out  of  lands. 

§223,     Payment  so  much  per  well. 

Occasionally  a  provision  in  a  lease  provides  that  the  lessor's 
compensation  shall  be  so  much  per  well  drilled  or  to  be  drilled. 
This  is  more  frequently  the  case  with  respect  to  gas  than  oil 
wells ;  but  occasionally  it  is  applied  to  the  latter.  Thus  a 
lease  for  gas  and  oil  provided  if  gas  only  be  found,  the  lessee 
should  pay  a  stipulated  sum  per  annum  for  each  well  "  while 
the  same  is  being  used  off  the  premises,"  but  contained  no 
clause  inconsistent  with  this  provision.  It  was  held  that  the 
lessee  was  not  required  to  pay  such  sum  for  a  gas  well  whose 
product  was  not  used,  even  though  it  might  be  used  off  the 
premises  without  loss  to  the  lessee.^  In  the  printed  part  of  a 
lease'  it  was  stipulated  that  the  lessee  should  have  the  exclusive 
right  to  drill  wells  and  operate  tliem  on  a  small  plot  of  ground, 
for  which  it  was  to  furnish  gas  for  four  residences,  free  of 
charge,  so  long  as  gas  was  obtained  in  paying  quantities,  and 
to  pay  a  rental  of  two  hundred  dollars  a  year  for  each  well 
completed.  In  the  written  portion  it  was  stipulated  that  of 
the  we,ll  rental,  one  hundred  dollars  should  be  paid  in  cash 
and  one  hundred  dollars  in  gas.  The  cash  payment  was  to  be 
annually  in  advance,  beginning  with  a  certain  date,  to  quote, 
"  whether  a  gas  well  is  drilled  or  not.  The  gas  payment  above 
7iamed  begins  with  this  date,"  which  was  the  date  of  the  lease. 
The  contract  was  carried  out  for  two  years  according  to  the 
provisions  in  the  AA^itten  stipulations.  A  contention  arising 
between  the  lessor  and  lessee,  it  was  held  that  the  cash  and  gas 

8  Wagstaflf   V.   Lowerre.    23    Barb.  n  Ohio   Oil   Co.   v.   Lane,   50   Ohio 

209.  St.  307;   52  N.  E.  Rep.  791. 


EEIS'TS  AXD  ROYALTIES.  253 

payment  were  to  be  paid  annually,  whether  a  gas  well  was 
drilled  or  not/"  It  is  no  defense  to  an  action  for  rent,  on  a 
lessee's  failure  to  drill  more  than  two  wells,  where  a  lease  re- 
quired him  to  drill  three  wells  within  a  specified  time,  or  pay 
a  year's  rent,  and  also  pay  for  all  marketable  wells  two  hun- 
dred dollars,  that  to  drill  a  tliird  well  would  destroy  the  other 
two,  and  would  be  of  no  use.^^  Where  for  the  first  well  so 
much  was  to  be  paid  if  it  produced  a  specified  amount  of  oil, 
and  so  much  more  if  the  amount  was  greater;  and  if  a  second 
well  was  put  down,  a  specified  additional  amount ;  and  the  first 
well  failed,  but  the  second  was  productive,  it  was  held  that  the 
lessee  must  pay  the  additional  sum  for  the  second  well,  as  pro- 
vided for  in  the  lease,  even  though  the  first  well  failed/"  A 
lease  provided  that  a  well  should  be  .drilled  within  sixty  days, 
a  second  within  four  months,  a  third  within  eight  months,  and 
a  fourth  within  a  year,  the  lessee  "  to  pay  one  hundred  and 
fifty  dollars  for  each  location,"  the  location  to  be  selected  by 
both  the  lessor  and  lessee.  The  lessee  was  to  hold  fifteen  acres 
only  for  eadi  well  drilled,  unless  they  were  all  completed  as 
agreed.  The  lease  was  held  not  to  require  the  payment  of  lo- 
cation money  for  any  well  drilled  in  addition  to  the  four  pro- 
vided for,  for  the  reason  that  the  lessee,  on  the  completion  of 
the  four,  was  entitled  to  the  oil  right  to  the  entire  tract,  and 
in  that  event  an  increased  number  of  wells  would  benefit  the 
lessor." 

§224.     Royalty,  percentage  of  profits  or  income. 

The  word  "  profit "  used  in  an  agreement  to  pay  a  certain 
portion  "  of  all  the  profits  realized  from  oil  or  gas  "  found  on 

loKokomo,    etc..    Gas    Co.    v.    Al-  Dec.    650;    reversing   4    Ohio   N.   P. 

bright,  18  Ind.  App.  151;  47  :N'.  E.  407. 
Rep.  682.  As  to  release  of  rent  per  well  and 

11  Young  V.  Equitable  Gas  Co.,  5  substitution  of  another  rent,  by 
Pa.  Super.  Ct.  232;  28  Pittsb.  L.  J.  changing  the  number  of  wells,  see. 
(N.  S.)   75;  41  W.  N.  C.  24.  Meeker    v.    Browing.    9    Ohio    C    D. 

12  Brushwood,  etc..  Co.  v.  Hickey  108;  17  Ohio  C.  C.  .548;  and  Hunter 
(Pa.).  16  Atl.  Rep.  70.  v.  Apollo  Oil  and  Gas  Co.   (Pa.),  54 

13  Ft.  Orange  Oil  Co.  v.  Wiehman,  Atl.  Rep.  274. 
17   Ohio   Cir.   Ct.    Rep.    57;    9   Ohio 


254  OIL    AND    GAS. 

the  leased  premisee,  means  the  net  amount  realized  after  de- 
ducting the  expenses,  and  is  not  the  equivalent  of  "  income."  ^* 
Where  the  agreement  was  to  give  a  certain  portion  of  the  profits 
of  all  gas  "  conducted  off  the  premises,  for  use  or  sale,"  above 
the  costs,  all  expenses,  including  cost  of  pipes  and  materials,  and 
payments  for  right  of  way  and  for  employees'  salaries,  must  be 
deducted  from  the  sales.^^  If  there  be  no  net  profits,  in  such 
instances,  the  lessee  is  not  liable,  not  even  if  he  permit  another 
to  work  the  premises  with  the  same  understanding,  who  fails 
to  realize  profits,  if  the  lease  does  not  prohibit  subletting.^*' 
But  where  the  royalty  was  fixed  at  a  certain  portion  of  the  oil 
to  be  delivered,  free  of  expense,  in  tanks  or  pipe  lines,  and  on 
gas  "  at  the  rate  of  one-eighth  of  income  dollars  per  year,"  it 
was  held  that  the  "  income  "  referred  to  is  the  gross,  not  tbe 
net  income.^^ 

§225.     Payment  of  operating  expenses  first. —  Free  gas. 

A  lease  j>rovide.d  for  the  payment  of  a  royalty  on  the  gas 
actually  produced,  and  also  contained  the  following  clause: 
"  If  gas  is  obtained  in  sufficient  quantities  and  utilized  off  these 
premises,  the  consideration  shall  be  the  use  thereof  for  domes- 
tic purposes  and  one-eighth  of  the  gas  sold  for  every  gas  well 
drilled  on  the  premises  herein  described  and  piped  off  the 
same."  The  lease  also  provided  that  the  lessees  should  have  suf- 
ficient gas  for  the  operation  of  the  lease.  It  was  held  that  the 
lessor  had  the  right  to  the  gas  if  it  was  obtained  in  sufficient 
quantities,  only  after  the  lessee  had  used  gas  for  the  purpose 
of  operating  his  lease  in  a  proper  and  reasonable  manner.^* 

§226.     Free  gas. 

A  very  common  provision  in  oil  or  gas  leases  is  that  the  les- 
sor shall  have  sufficieiit  gas,  if  any  be  found,  for  domestic  or 

i^Potterie    Gas    Co.    v.    Potterie,  i^  Busby  v.  Russell,   18  Ohio  Cir. 

179  Pa.  St.  G8;  36  Atl.  Rep.  232.  Ct.  Rep.  12;   10  Ohio  C.  D.  23. 

15  Akin  V.   Marshall  Oil   Co.,    188  is  Fanker    v.    Anderson,    173    Pa. 

Pa.  St.  602;  41  Atl.  Rep.  748.  St.  86;  34  Atl.  Rep.  434.     See  Akin 

leCaley    v.     Portland,     12     Colo.  v.  Marshall  0^''  r-n..  188  Pa.  St.  602;. 

App.  397;  56  Pac.  Rep.  350.  41   Atl.  Rep.  748. 


RENTS  AND  ROYALTIES.  255 

a  specified  use,  in  addition  to  pay  for  the  lease  or  a  certain 
]X)rtion  of  the  oil  produced.  This  "  free  gas  "  may  be  re- 
garded as  a  part  of  the  royalty,  as  it  in  fact  is.  Such  a  con- 
tract is  binding  upon  the  lessee.  Thus  where  a  contract  pro- 
vided that  one  of  the  parties  should  have  sufficient  natural  gas 
with  which  to  oi^erate  his  electric  light  plant  so  long  as  a  gas 
well  belonging  to  the  other  party  would  supply  it,  but  allowing 
such  other  party  to  use  gas  from  the  well  for  other  purposes,  it 
Avas  held  valid ;  and  as  the  lessor  had  erected  an  electric  lighting 
plant  at  a  large  expense,  which  could  be  operated  only  with 
gas,  and  there  was  no  other  gas  obtainable  or  accessible  to  the 
plant  without  great  delay  and  expense,  an  injunction  was  issued 
to  prevent  the  cutting  off  of  the  supply.^''*  A  lease,  executed 
July  25,  required  the  lessees  to  drill  a  well  within  twelve  months, 
or  pay  the  lessor  fifty-six  dollars  yearly  as  rent.  It  also  pro- 
vided that  the  lessee  should  furnish  gas  to  heat  and  light  the 
dwelling  on  the  leased  premises  on  or  before  ]S[ovember  15th, 
of  the  same  year.  It  was  held,  notwithstanding  these  inconsis- 
tent provisions,  that  they  were  independent  and  lawful,  and 
that  the  lessee  was  not  excused  from  liability  for  a  failure  to 
furnish  gas  within  the  specified  time  by  their  neglect,  to  drill 
a  well.  In  this  case  the  lessee  assigned  the  lease.  The  lessor 
sold  the  premises  leased  in  1896  to  the  plaintiff,  who  occupied 
them  for  some  time  thereafter.  In  1898  this  purchaser  ex- 
ecuted a  deed  absolute  on  its  face,  but  only  intended  to  secure 
a  debt  he  owed  to  his  grantees.  This  deed  provided  that  the 
grantees  were  "  to  have  the  proceeds  accruing  from  said  lease." 
In  1899  these  grantees  conveyed  the  leased  premises  by  quit 
claim  deed  to  one  M.  at  the  request  of  the  plaintiff.  This  quit 
-claim  deed  was  to  secure  M.  for  money  he  had  loaned  the  plain- 
tiff to  pay  the  grantee  in  the  deed  of  1898.  The  plaintiff 
brought  suit  for  a  breach  of  the  agreement  in  the  lease  to  fur- 
nish gas  for  the  dwelling  on  the  leased  premises.  It  was  held 
that  the  plaintiff  who  occupied  and  used  the  leased  land  was 

19  Xenia  Real  Estate  Co.  v.  Maey.  Rep.    283,     and    Whitman    v.    Fay- 

147    Ind.    568;    47   N.   E.   Rep.    147.  ette  Fuel  Gas  Co.,  139  Pa.  St.  492; 

The  court  cited  Graves  v.  Key  City  20  Atl.  Rep.  1062,  which  have  been 

Gas   Co.,    83    Iowa    714;    50   N.    W.  discussed  elsewhere. 


256  OIL    AXD    GAS. 

the  only  one  damaged  by  a  .breach  of  the  agreement,  and  that 
he  could  maintain  the  action,  and  not  the  grantees  in  the  deed 
—  the  word  "  proceeds  "  referring  to  the  rentals  stipulated  in 
the  lease,  and  being  transferred  on  a  condition  never  enforced.^* 
A  lease  contained  a  provision  requiring  the  lessee  to  furnish  the 
lessor  gas  free  for  the  latter's  residence  on  the  premises.      It 
gave  tlie   lessee  the   privilege   to   remove   his   machinery'   and 
fixtures,  but  provided  if  he  abandoned  the  lease  while  there  was 
a  well  furnishing  gas  sufficient  for  the  residence,  the  well  should 
be  left  in  such  a  condition  as  it  could  be  used  by  the  lessor. 
It  was  held  that  the  lessee  could  not  remove  the  pipe  from  the 
well,  diereby  cutting  off  the  supply  of  gas  to  the  residence,  re- 
gardless of  the  fact  whether  or   not  such   pipe  was   personal 
property  ;  and  a  complaint  charging  that  he  did  remove  the  pipe, 
whereby  the  gas  was  wrongfully  cut  off,  stated  a  good  cause  of 
action."^     Where  a  gas  company  entered  into  a  contract  with 
plaintiff,   who  was  not  the   owTier  of  the   premises  leased,   to 
furnish  gas  for  dwelling  house  purposes  so  long  as  a  suflficient 
amount  of  gas  would  flow  from   its   well ;   and   a   few  years 
thereafter  the  company  gave  notice  that  it  would  cut  off  the 
supply  of  gas,  claiming  that  the  flow  was  no  longer  sufiieient 
to  supply  the  plaintiff,  it  was  held  he  was  not  entitled  to  an 
injunction  restraining  the  company  cutting  off  the  gas,  in  the 
absence  of  a  showing  that  he  had  no  other  means  of  heating  or 
lighting  his  dwelling."'     Under  a  provision  that  if  gas  be  ob- 
tained on  the  leased  premises  in  suflHcient  quantities  and  used 
off  the  premises,  the  lessor  shall  be  entitled  to  the  free  use 
thereof  for  domestic  purposes,  the  right  of  the  lessor  to  the  use 
of  ^  for  such  purposes  is  conditioned  u]X)n  there  being  a  suffi- 
cient quantity  for  that  purpose  remaining  after  its  use  in  a  rea- 
sonable manner  by  the  lessee  in  the  operation  of  the  lease. ''^     A 
right  given  a  lessor  to  use  gas  for  his  mill  and  three  houses  is 
confined  to  an  attachment  to  a  well  drilled  on  his  oavu  premises, 

20  Indiana   Natural    Gas   and    Oil  —  Loy  v.  Madison,  etc..   Gas  Co., 

Co.  V.  Hinton,  1.50  Ind.  ■;   64  N.  156  Ind.  332;   58  N.  E.  Rep.  844. 

E.   Rep.   224.  23  Fanker    v.    Anderson,    173    Pa. 

21  Ohio  Oil  Co.  V.  Geiest,  30  Ind.  St.  86 ;  34  Atl.  Rep.  434. 
App.  — ;  65  N.  E.  Rep.  534. 


RENTS  AND  ROYALTIES.  2J5  < 

and  he  cannot  insist  tliat  lio  receive  gas  from  a  pipe  line  con- 
veying gas  from  otlier  wells  beside  that  upon  his  own  premises, 
although  he  was  originally  permitted  to  attach  to  a  different 
piix3  lino  which  had  l>een  taken  np.  In  this  case  —  a  case  of  a 
grist  mill  —  the  substitution  of  the  roller  process  instead  of  the 
old  bun'  process  was  held  not  a  violation  of  the  contract  for  free 
gas  for  the  mill  ""  as  now  erected  and  built,"  the  change  not 
involving  an  increase  in  tlie  consumption  of  gas.^'*  If  a  city 
or  town  gi'ant  a  gas  company  the  exclusive  right  to  the  use  of 
its  streets',  on  condition  that  it  funiish  it  with  free  gas  "  so  long 
as  they  shall  have  the  exclusive  right  to  use  the  streets  and 
alleys  of  said  city  for  tlieir  pipes,"  such  company  is  only  com- 
pelled to  furnish  the  gas  so  long  as  they  have  the  only  right 
granted,  and  the  granting  of  the  privilege  to  another  company 
giving  it  the  right  to  lay  pipes  in  the  streets  for  the  same  pur- 
poses as  tlie  first  grant,  relieves  the  first  company  from  its 
obligation  to  furnish  free  gas.  In  this  case  the  second  contract 
contained  a  condition  precedent  to  the  effect  that  such  company 
should  have  such  right  if  one  or  more  gas  wells  were  in  opera- 
tion within  one  year;  and. it  was  held  that  the  holders  of  the 
original  frandiise  were  not  relieved  from  furnishing  free  gas 
to  the  city  until  the  condition  in  the  second  contract,  had  been 
perfomied  and  the  right  to  occupy  the  streets  with  its  pi}>es  by 
the  second  company  acquired."" 

§227.     Royalty  in  gas  or  oil  used  to  operate  leased  premises. 

It  has  been  held  in  the  case  of  a  coal  mine  that  upon  coal 
consumed  in  running  an  engine  to  hoist  the  coal  from  tlie  mine, 

24Pearce  v.  Bridgewater  Gas  Co.,  Gas  Trust  Co.   (Ind.),  29  N.  E.  Rep. 

28  Pittsb.  Leg.  J.   (N.  S.)   171.  398.  31  L.  R.  A.  673.  was  one  con- 

25  Newark    Gas   and    Fuel    Co.    v.  taining    a    question    of    "free    gas," 

Newark,   8   Ohio   S.   and  C.   P.   Dec.  but  a  rehearing  in  it   was  granted, 

418;   7  Ohio  N.  P.  76.  and  no  second  opinion  filed. 

An  assignee  of  the  lease  is  bound  If   a   lessor   land   owmer    use   free 

to  comply  with  the  provision  in  the  gas  after  forfeiture  incurred,  he  will 

lease   for    free   gas.     Peers   v.    Con-  not  waive  his  right  to  declare  a  for- 

solidated  Coal  Co.,  59  111.  App.  ,59.5;  feiture.      American    Window    Glass 

Consolidated  Coal   Co.  v.   Peers,   59  Co.  v.  Williams   (Ind.  App.),  66  N. 

111.  App.  604.  E.   Rep.   912. 

The  case  of  Evans  v.  Consumers' 


258  OIL    AND    GAS. 

no  royalty  was  due.  In  that  instance  the  lease, provided  for  a 
royalty  per  ton  on  all  coal  mined,  the  ton  in  all  cases  to  be 
2,240  pounds  prepared  coal ;  and  it  was  shown  that  it  was  the 
custom  at  the  time  of  the  execution  of  the  lease  to  hoist  ])ro- 
pared  coal  from  the  mines  by  the  use  of  steam  power  obtained 
hj  the  incidental  consumption  of  the  coal  itself.'*^  But  where 
Ihe  lessee  agreed  to  give  a  portion  of  all  the  oil  and  one-fourth 
oi  the  profits  of  all  gas  "  conducted  off  the  premises  or  sold,  it 
was  held  that  in  ascertaining  the  amount  due  lessor,  all  tlie  ex- 
penses, including  the  cost  of  ]>i|Tes  and  materials,  payments  for 
right  of  way  and  for  employees'  salaries  must  first  be  deducted, 
and  one-fourth  of  the  remainder  paid  him;  and  that  gas  used 
by  the  lessee  should  be  charged  for  at  the  same  rates  as  if  sold 
to  others.-^ 

^228.     When  royalty  due, —  removal  of  oil  from  premises. 

The  usual  lease  fixes  the  time  when  the  royalty  shall  be 
paid  —  as,  where  it  provides  for  payment  of  a  royalty  on  all  oil 
produced  during  the  month.  In  such  an  event  the  royalty  is 
due,  of  course,  at  the  end  of  that  period  of  time.  As  a  rule 
little  controversy  can  arise  over  the  point  of  time  when  the 
royalty  is  payable.  If  the  lease  should  provide  that  it  was 
payable  on  each  barrel  of  oil  "  mined,  taken,  or  removed  from 
the  premises,"  then  the  royalty  is  due  when  the  oil  is  removed 
from  the  well,  and  its  maturity  is  not  postponed  until  after  its 
shipment.  "^ 

^  Wright   V.    Warrior    Run    Coal  in    quarterly    installments.     It    was 

€o.,   182   Pa.  St.  .514;   41  W.  N.  C.  held    that   the   year    for   which    the 

170;    9    Kulp.    1;    28    Pittsb.    \j.    J.  payments    were    to    be    made    oom- 

(N.  S.)  202;  .38  Atl.  Rep.  491.  menced   from   the   beginning  of   the 

27  Akin  V.  Marshall  Oil  Co..  188  actual  "  mining  year,"  and  not  from 
Pa.  St.  614;  41  Atl.  Rep.  748.  See  the  time  at  which  the  lessee  had 
also  Meeker  v.  Browning,  9  Ohio  C.  procured  his  machinery  and  was 
D.  108.  ready  to  proceed  with  mining  opera- 

28  Higgins  V.  California,  etc.,  Co.,  tions.  Flynn  v.  White  Breast  Cnnl 
109  Cal.  .304;   41    Pac.  Rep.   1087.  Co.,    72    Iowa   738;    32   N.    W.   Rep. 

A    coal    lease    provided    that    the       471. 
lessee*  should  mine  a  certain  quan-  Lessees  of  a  stone  quarry  agreed 

tity  of  coal  yearly,  and  pay  royalty       to    pay    a    certain    rate    for    stone 


RENTS  AXD  ROYALTIES.  259 

§229.     When  rent  is  due  for  failure  to  develop  land. 

Frequently  leases  require  tlie  premises  to  be  developed  by  a 
certain  time,  and  if  not  developed,  then  the  payment  of  a 
monthly  or  yearly  rental.  In  such  instances  it  becomes  a  ques" 
tiqn  when  the  rent  is  payable.  In  one  case  a  lease  required  a 
Avell  to  he  completed  within  ninety  days,  and,  "  in  case  of 
failure  so  to  do,  to  pay  a  yearly  rental  from  the  expiration  of 
the  ninety  days  until  such  well  shall  be  completed."  It  was 
held  that  the  annual  rental  was  due  only  at  the  end  of  one  year 
after  the  default,  and  not  from  the  beginning  of  the  lease. ^'^ 
Where  the  lease  required  tlie  payment  of  eight  dollars  per 
annum  from  the  time  of  its  execution  until  a  fixed  date,  and 
thereafter  one  hundred  dollars  annually  for  each  gas  well  after 
its  completion,  but  until  a  well  was  drilled  the  rent  should  be 
eight  dollars,  there  being  no  clause  binding  the  lessee  to  drill 
a  well,  it  was  held  that  the  higher  rental  was  not  due  until  the 
well  was  completed.^" 

§230.     To  whom  payable  —  joint  lessors. 

Royalties  or  rent  is  payable,  of  course,  to  the  lesssor  or  his 
agent,  or  to  the  person  designated  in  the  lease  as  the  beneficiary 
or  recipient.  On  such  a  proposition  as  this,  there  can  be  no 
dispute.  Of  course,  if  the  lessor  assign  or  convey  the  lease,  or 
convey  the  fee  in  the  leased  premises,  without  reserving  the 
right  to  the  rent  or  royalty,  then  it  will  be  payable  to  his 
assignee  or  grantee.  And  if  the  lease  be  granted  by  two  or 
more  joint  owners  of  tlie  premises,  and  the  rent  or  royalties- 

"  shipped  "    by   them.     It  was  held  without  a  second  opinion  beino^  filed, 

that  no  royalty  was  due  for  stone  It  is  not  known  on  what  point  thT 

quarried    and    ready    for    shipment,  rehearing  was  granted, 

but  not  actually  shipped.     Crawford  See  Edmonds  v.  Mounsey,  15  Ind, 

V.  Oman,  etc.,  Co.    (S.  C).,  12  S.  E.  App.   .399;   44  N.   E.   Rep.   196,  and 

Rep.  929.  Breckenridge    v.    Parrott.     15    Ind, 

29  Evans  v.  Consumers'  Gas  Trust  App.  411;  44  X.  E.  Rep.  66. 

Co.    (Ind.),  29  N.  E.  Rep.   398;   31  so  Diamond    Plate    Glass    Co.    v, 

L.    R.    A.    673.     A    rehearing    was  Tennell.  22  Ind.  App.  346;  52  N.  E, 

granted,  however,  in  this  case;   and  Rep.  782. 
after     that     the     appeal     dismissed 


260  OIL    AND    GAS, 

fixed  in  it  is  reserved  to  tliem  jointly,  witliout  a  designation  of 
any  particular  part  due  any  of  the  lessors,  payment  to  one  will 
be  a  payment  to  all,  especially  so  if  there  be  no  objection  upon 
.the  part  of  the  lessors  not  receiving  them.^^  And  if  the  rent  is 
payable  to  two  lessors,  one  of  whom  in  fact  had  no  interest  in 
the  premises,  in  an  action  to  recover  one-half  of  the  rent  brought 
by  the  party  having  no  interest  in  the  premises,  the  lessee  may 
show  the  circumstances  under  which  such  lessor  signed  the  lease, 
not  to  deny  his  landlord's  title,  but  to  deny  that,  as  to  such  al- 
leged lessor,  the  lease  created  that  relation.^"  In  such  a  case 
the  assignment  by  the  owner  of  his  interest  in  the  lease,  does 
not  amount  to  a  severance  of  his  interest  nor  an  apportionment 
of  the  rent,  as  a  matter  of  law.^'^  Where  a  lease  was  put  upon 
six  hundred  acres,  divided  into  three  faruis,  and  the  lessor 
dying  devised  them  to  his  three  cliildren  ;  and  the  lease  provided 
that  all  its  conditions  should  extend  to  the  lessor's  heiirs,  as- 
signs and  j>ersonal  representatives,  it  was  held  that  each  child 
was  entitled  to  a  share  in  the  royalties,  proportioned  according 
as  his  holdings  bore  to  the  six  hundred  acres,  although  the  wells 
were  all  on  one  farm.^*  The  grantor  of  leased  premises  may 
be'  entitled  to  the  royalties,  even  though  he  made  no  reservation 
in  his  deed ;  and  the  lessee  may  show  this  fact  when  sued  by  the 
grantee  in  the  deed  of  conveyance ;  and  this  was  held  particu- 
larly true  Avhere  a  wife  and  her  husband,  in  a  conveyance  of 
her  property,  at  the  time  of  such  conveyance,  expected  that  a 
mortgage  of  the  oil  interests  would  be  paid  off,  and  that  the 
rights  would  revert  to  them.^^  If  the  lessee  assign  the  lease, 
resei'ving  rent  to  himself,  then  his  portion  must  be  paid  to  him, 
while  the  portion  to  the  lessor  must  be  paid  to  such  lessor.^® 


31  Swint    V.    McCalmont   Oil    Co.,  34  Wettengel  v.  Gormley,   184  Pa. 
184  Pa.  St.  202;   41  W.  N.  C.  491;  St.   354;    39  Atl.  Rep.   57. 

38  Atl.  Kep.   1021;   28  Pittsb.  L.  J.  35  Simmons     v.     Buckeye     Supply 

(N.  S.)  319;  Harness  v.  Eastern  Oil  Co.,  21   Ohio  Cir.  Ct.  Rep.  455;    11 

Co.,  49  W.  Va.  232;   38  S.  E.   Rep.  Ohio  C.  D.  690. 

662.  30  Harris  v.  Cobb,  49  W.  Va.  350 ; 

32  Ibid.  38  S.  E.  Rep.  559. 

33  Ibid. 


EENTS  AND  ROYALTIES.  261 

§231.     Damages  for  failure  to  deliver  lessor  his  share. 

If  a  lessee  fail  or  refuse  to  deliver  tlie  lessor  his  share  of  the 
oil  reserved  as  royalty  he  will  be  liable  for  the  actual  market 
value  of  the  oil  at  the  date  of  refusal  to  deliver,  with  interest 
from  that  date.^'^ 

§232.     Interest  on  royalties. 

Interest  begins  to  run  on  royalties  from  the  date  they  are 
due,  or  if  a  demand  for  them  is  necessary  before  suit  brought, 
then  from  the  date  of  the  demand.  Where  a  notice  of  for- 
feiture was  of  no  effect,  for  the  reason  that  the  demand  for 
unpaid  royalties  was  excessive,  it  was  held  that  the  lessee  was 
only  required  to  pay  with  interest  whatever  was  due  at  the 
time  the  notice  had  been  given,  and  the  royalties  on  coal  which 
had  been  actually  mined  after  the  date  of  the  demand  and 
before  suit  brought,  with  interest,  when  a  tender  had  been 
made.^^ 

§233.     Waiver  —  parol  evidence. 

In  an  action  to  recover  rent  or  royalties  due  under  a  written 
lease  for  a  year,  parol  evidence  was  held  admissible  to  show  a 
written  waiver  of  such  rent  or  royalty.^® 

§234.     Surrender  —  tract  "  retained." 

A  lease  covered  several  tracts  of  land.  It  provided  that  in 
the  event  any  tract  failed  to  yield  the  lessor  a  certain  royalty, 
the  lessee  should  pay  a  certain  named  rental  upon  each  tract 
"  retained."     It  was  held  that  the  word  "  retained  "  referred 

37  Union  Oil  Company's  Appeal,  3       Storch,  5  Lack.  Leg.  N.  189;  7  Del. 
Penny.     (Pa.)     504.     The    court    re-        Co.  Rep.  467. 

fused   to   apply   the   rule   applicable  39  Crawford  v.  Bellevue,   etc..  Gas 

to  stocks  in  an  instance  of  a  refusal  Co.,    183   Pa.   St.   227;    38   Atl.   Rep. 

to   deliver.  595;    Wilgus   v.   \Miitehead,    89   Pa. 

38  West    Ridge    Coal    Co.    v.    Van  St.    131. 


262  OIL    AND    GAS. 

to  the  right  to  operate,  which  right  continued  so  long  as  the 
lessee  had  made  no  formal  surrender.**' 

§235.     Interdependent  conditions. 

A  lessor  was  to  receive  one-eighth  of  all  oil  produced  under 
a  lease.  Subsequently  he  and  the  lessee  entered  into  a  written 
supplemental  contract  in  reference  to  an  existing  oil  well  then 
on  the  farm,  in  which  it  was  agreed  that  if  it  should  produce  a 
daily  average  of  five  barrels  of  oil  for  thirty  days,  the  lessee 
should  pay  the  lessor  $250 ;  if  ten  barrels,  $500 ;  "  should  the 
second  well  provided  for  in  lease  in  like  manner  produce  fifteen 
barrels,  the  lessee  to  pay  the  lessor  the  further  sum  of  $1,000. 
Explanations :  The  understanding  and  agreement  in  regard  to 
the  test  well  being  that  plaintiff  is  in  uo  event  to  receive  exceed- 
ing the  sum  of  $500."  The  first  well,  being  old  ceased  to  pro- 
duce oil;  but  the  second  produced  more  than  fifteen  barrels  for 
thirty  days.  The  lessee  claimed  that  the  words  "  in  like  man- 
ner "  and  "  further"  showed  that  the  sum  to  be  paid  upon  tlie 
production  of  tlie  second  well  was  dependent  upon  the  produc- 
tion of  the  first,  and  as  that  had  failed,  nothing  was  payable  on 
the  second.  But  the  court  held  that  the  sums  to  be  paid  were 
in  the  nature  of  a  bonus,  to  be  paid  upon  the  production  of  the 
wells,  and  that  the  lessee  was  bound  for  the  payment  on  the  sec- 
ond well,  though  the  first  produced  nothing.*^ 

§236.     New  lease. 

If  the  lessor  give  the  lessee  a  new  lease  for  the  premises,  it 
will  amount  to  a  surrender  of  the  old  one  if  the  lessee  accept  it ; 
and  will  release  the  lessee  from  his  obligation  to  pay  rental  or 
royalties  under  the  old  lease  from  the  date  of  the  surrender, 
though  not  from  those  that  had  accrued  at  the  time  of  its  ac- 
ceptance.*^    In   such  an  event,   if  the  lessee  has  assigned  the 

40  Jamestown,  etc.    Co.    v.  Egbert,  42  Smith  v.  Munhall,   139  Pa.   St. 
152  Pa.  St.  53;   25  Atl.  Rep.  151.  253;    21    Atl.    Rep.    735;    Meeker   v. 

41  Brushwood    DeA'eloping    Co.    v.  Browning,    9    Ohio    C.    D.    108;    IT 
Hickey    (Pa.).    16   Atl.   Rep.   70;    2  Ohio  C.  C.  Dec.  548. 

Mon.   (Pa.)   65. 


RENTS  AND  ROYALTIES.  263 

lease,  but  a  forfeiture  had  taken  place,  before  the  assignment, 
though  not  declared  until  afterward,  and  the  lessor  give  the 
lessee  a  new  lease,  its  acceptance  will  l)e  a  surrender  of  the  old 
one,  depriving  the  assignee  of  all  rights  under  it,  but  releasing 
him  from  tlience  on  for  the  rents  and  royalties/^ 

§237.     Termination  of  lease  by  failure  to  keep  its  terms. 

Although  the  right  to  declare  a  forfeiture  of  a  lease  is  for 
the  benefit  of  the  lessor,  and  tJie  lessee  cannot  avail  himself  of 
an  actual  forfeiture  on  his  part,  yet  the  lease  may  be  so  con- 
ditioned tliat  a  failure  to  keep  tlie  condition,  even  on  the  part 
of  the  lessee,  vnW  tenninate  its  existence  and  relieve  him  from 
any  liability,  or  any  further  liability,  for  rents  or  royalties.  In 
such  instances  the  life  of  the  lease  is  made  to  depend  upon  the 
performance  of  the  condition  imposed.  Thus  where  a  grant 
was  made  of  the  oil,  gas  and  minerals  underlying  a  certain 
tract  of  land,  on  the  condition  that  the  grantor  was  to  have  a 
certain  portion  of  the  product  mined ;  and  the  deod  provided 
that  if  no  well  was  completed  within  a  certain  period  of  time 
from  its  date,  the  grant  should  be  null  and  void,  unless  the 
grantee  should  pay  the  grantor  a  specified  rental  for  each  year 
the  completion  of  the  well  was  delayed,  and  it  was  also  stipr 
ulated  that  the  grantee  might  surrender  tlie  lease  at  any  time 
by  paying  the  rental  on  the  land  to  the  time  of  the  surrender, 
it  was  held,  in  as  much  as  it  was  optional  with  the  grantee  as 
to  whetlier  he  would  do  anything,  and  as  no  well  had  been 
drilled,  there  was  no  obligation  resting  upon  him  to  pay  any 
rent,  or  to  make  compensation  for  oil  or  gas.**  Where  an  oil 
or  gas  lease  was  given  for  a  period  of  twenty  years ;  and  if  gas 
was  found  in  sufficient  quantities,  and  was  used,  there  should  be 
paid  five  hundred  dollars  per  annum  for  each  well  drilled ;  one 
well  was  to  be  completed  within  six  months,  and  if  it  was  not, 
then  the  lessee  was  to  pay  a  certain  sum  per  annum  in  full  for 

43  Natural    Gas    Co.    v.    Philadel-  624;   57  N.  E.  Rep.  260.     See  Snod- 

phia  Co.,   158  Pa.   St.  317;   27   Atl.  grass  v.  South  Penn.  Oil  Co.,  47  W. 

Rep.   051.  Va.  509;   35  S.  E.  Rep.  820. 

4*  Brooks  V.  Kunkle,  24  Ind.  App. 


2Q4:  OIL    AND    GAS. 

such  yearly  dela^',  until  tlie  well  was  completed ;  and  a  failure 
to  complete  within  that  period,  or  pay  such  rental,  rendered  the 
lease  void ;  and  if  neither  gas  nor  oil  was  found  on  the  prop- 
erty within  two  years  from  the  date  of  the  leasfe,  then  the  lease 
was  "  to  expire  and  he  of  no  effect  "  ;  and  the  lessee  permanently 
ceased  to  use  a  gas  well  drilled  on  the  premises  before  the  ex- 
piration of  the  twenty  years  for  the  reason  that  the  gas  supply 
was  exhausted,  it  was  held  that  he  was  not  liable  for  the  annual 
rent  after  so  ceasing  to  use  the  premises. ^^  Where  a  lease  con- 
tained no  covenant  to  pay  rent  or  develop  the  premises,  .merely 
providing  that  it  should  become  null  and  void,  and  all  rights 
cease,  unless  a  well  should  be  co^mpleted  on  the  premises  within 
a  month,  or  unless  rent  be  paid  in  advance  at  a  certain  rate  per 
month,  it  was  held  that  the  lessee  was  under  no  obligation  to 
continue  his  explorations,  and  was  under  no  obligation  to  pay 
rent.**" 

§238.     Lessee    cannot    avoid    payment    by   taking   advantage    of 
forfeiture  clause. 

It  is  a  trite  rule  of  law  that  a  man  cannot  take  advantage  of 
his  own  default  to  avoid  liability.  Nor  can  he  tiake  advantage 
of  his  default  in  the  development  of  leased  property  to  avoid 
payment  of  rent.  Where  a  twenty-year  lease  provided  that  if  a 
well  was  not  commenced  within  three  months,  the  lessee  should, 
after  that  period,  pay  a  certain  monthly  rental  until  the  work 
was  commenced ;  and  a  clause  provided  that  in  no  case  should 
the  commencement  of  tlie  well  be  delayed  beyond  six  months, 
and  if  no  well  was  begun  within  that  period,  the  lease  should 
be  forfeited;  it  was  held  that  the  clause  of  forfeiture  was  for 
tliQfc -benefit  of  the  lessor,  and  until  he  elected  to  enforce  it,  the 
lessee's  liability  to  pay  rent  continued.*'      A  stronger  case  arose 

45  Williams  V.  Guffey,  178  Pa.  St.  Co.  v.  Curless,  22  Ind.  App.  34G; 
342;  35  Atl.  Rep.  875.  52  N.  E.  Re^).  782. 

46  Glasgow  V.  Chartiers  Gas  Co..  *"  Matthews  v.  People's,  etc.,  Gas 
152  Pa.  St.  48;  25  Atl.  Rep.  232;  Co.,  179  Pa.  St.  165;  39  W.  N.  C. 
contra,  Chamberlain  v.  Parker.  45  544;  36  Atl.  Rep.  216;  Brown  v. 
N.  Y.  569.  See  Diamond  Plate  Glass  Vandergrift,  80  Pa.  St.  142. 


REACTS  AXD  ROYAl.TIES.  265 

in  the  same  State.  It  was  provided  in  a  lease,  among  other 
things,  that  if  the  lessee  did  not  pay  rent  within  ten  days  after 
it  was  dne  the  lease  should  be  void,  and  neither  party,  after 
snch  failure,  shonld  have  a  right  of  action  by  reason  of  the 
breach.  It  was  held  that  the  lessee  conld  not  relieve  himself 
from  liability  for  the  rent,  or  prevent  the  lessor  from  main- 
taining an  action  therefor,  by  making  defanlt  in  its  payment.'*** 
So  where  a  lease  provided  that  if  the  lessee  failed  to  complete  a 
Avell  within  a  month  he  should,  after  that  time,  pay  a  certain 
rental,  until  a  well  was  completed ;  and  that  a  failure  to  com- 
plete a  well  or  pay  the  rental  should  annul  the  lease,  the  "  lessee 
having  the  option  to  drill  said  Avell  or  not,  or  pay  said  rental 
or  not,  as  he  may  elect,"  it  was  held  that  he  must  drill  a  well 
or  pay  the  rent,  and  that  he  could  not  avoid  the  liability  by  re- 
fusing to  do  either.*''  But  where  the  lessee  was  to  deliver  a 
part  of  the  oil  and  pay  a  certain  sum  for  gas,  and  the  lease  was 
to  be  null  and  void  unless  a  well  was  completed  within  a  year, 
or  unless  the  lessee  paid  a  certain  amount  quarterly  in  advance 
for  each  additional  three  months  the  completion  of  well  was  de- 
layed, it  w^as  held  that  the  lease  did  not  bind  the  lessee  to  pay 
any  rent  for  the  land  or  for  delay  in  commencing  to  bore  for  oil 
or  gas,  as  the  only  consequence  that  could  result  from  his  failure 
would  be  a  forfeiture  of  the  lease. ^° 

§239.     Forfeiture  clauses  and  liability  for  rent. 

A  twenty-year  lease  required  operations  to  be  begiui  in  ninety 
days,  to  be  prosecuted  diligently  and  continuously,  and  a  well 
to  be  completed  by  a  certain  date.  Failure  to  do  so  rendered 
the  lessee  liable  for  an  annual  sum,  payable  quarterly  in  ad- 
vance. Xo  work  was  done,  but  the  first  quarter  was  paid  volun- 
tarily, and  a  judgment  recovered  for  the  second  quarter,  which 
was  paid ;  and  an  action  was  brought  to  recover  for  tJie  third 

***  Coiio-le    V.    National,    etc.,    Co..  •''•*>  Snodgrass   v.    South    Penn.    Oil 

165  Pa.  St.  561;  30  Atl.  Rep.  1038;  Co.,  47  W.  Va.   509;    35  S.  E.  Rep. 

Roberts  v.  Bettman,  45  W.  Va.  143 ;  820 ;   Glasgow  v.  Chartiers  Gas  Co., 

30  S.  E.  Rep.  95.  152   Pa.   St.   48;    25  Atl.   Rep.   232; 

40  Jackson  v.  O'Hara,  183  Pa.  St.  affirming    Glasgow    v.    Griffith,    22 

233;   38  Atl.  Rep.  624.  Pittsb.  L.  J.    (N.  S.)    181. 


266  OIL    AND    GAS. 

and  fourth  quarters,  to  whidi  the  lessee  set  up  as  a  defense  ihc 
clause  in  the  lease  providing  that  if  he  failed  to  perform  all 
the  covenants  of  the  lease,  sudi  failure  to  perform,  or  breach 
of  the  covenants,  should  "  work  an  absolute  forfeiture  of  "  the 
grant.  It  was  held  that  this  was  no  defense  ;  for  the  reason  that 
only  tlie  lessor  could  take  advantage  of  the  violation  of  its  pro- 
visions.^^ And  where  tlie  clause  was  that  a  failure  to  complete 
a  well  within  the  time  and  place  described  should  "  render  the 
lease  null  and  void,  and  to  remain  without  any  force  and  effect 
between  the  parties,"  a  similar  iiiling  was  made.^"  In  another 
case  the  lease  provided  that  work  should  begin  within  sixty 
days,  and  a  well  be  completed  within  three  months  after  com- 
mencing it.  If  there  was  a  failure  to  complete  a  well,  the  les- 
see was  to  pay  tlie  lessor  for  such  delay  one  thousand  dollars 
annually  within  three  months  after  a  well  was  completed.  It 
was  also"  es[>ecially  provided  that  a  failure  to  complete  one  well 
or  to  make  such  payment  within  the  time  specified  should  ren- 
der the  lease  null  and  void,  and  to  remain  without  effect  between 
the  lessor  and  lessee.  The  lessee  neither  drilled  a  well  nor  paid 
any  sum  of  money.  The  lessee,  when  sued  for  a  breach  of  the 
covenants  of  the  lease,  claimed  that  his  failure  to  keep  them 
avoided  the  lease  from  the  beginning,  and  therefore  he  was  not 
bound  by  them ;  but  the  court  held  that  no  such  construction 
should  be  given  to  tlie  lease,  and  that  he  could  not  set  up  his 
own  default  as  a  defense.^^  A  like  ruling  was  made  where  the 
lease  provided  that  a  failure  to  keep  its  covenants  on  the  part 
of  the  lessee  should  "  render  the  agreement  null  and  void," 
and  no  right  of  action  should  after  such  failure  accrue  to  either 
party  on  account  of  the  breach  of  any  promise  or  agreement " 
cx)ntained  in.  it.^*  Even  where  a  lease  provided  it  should  be 
void  and  of  no  force  and  effect  without  the  consent  of  both  the 
lessor  and  lessee,  it  was  considered  that  it  was  for  the  lessor  to 

51  Wills  V.  Manufacturing,  etc.,  ss  Galey  v.  Kellerman,  123  Pa.  St. 
Co.,    130  Pa.   St.   222;    18  Atl.  Rep.       491;    16  Atl.  Rep.  474. 

721;  5  L.  R.  A.  603.  s*  Ogden    v.    Hatry,    14.5    Pa.    St. 

52  Ray  V.  Western,  etc.,  Co.,  138  640;  23  Atl.  Rep.  334;  Leatherman 
Pa.  St.  576;  20  Atl.  Rep.  1065;  12  v.  Oliver,  151  Pa.  St.  646;  25  Atl. 
L,.  R.  A.  290;   Cochran  v.  Pew,  159  Rep.  309. 

Pa.  St.  184;  28  Atl.  Rep.  219. 


RENTS  AND  ROYALTIES.  267 

declare  a  forfeiture  and  not  the  lessee,  and  unless  tlie  former 
did  declare  one,  the  latter  was  bound. ^'^ 

§240.     Surrender  of  lease  necessary  to  escape  liability  for  rent. 

So  long  as  a  lessee  holds  possession  of  the  leased  premises 
under  tlie  lease,  he  must  pay  rent,  even  though  the  lease  provide 
that  in  a  certain  event  it  was  to  be  null  and  void.  Thus,  where 
the  term  of  a  coal  lease  was  to  end  when  the  workable  coal  on 
it  was  exhausted,  but  it  gave  the  lessee  the  use  of  a  part  of  the 
demised  premises,  in  connection  with  mining  of  coal  on  ad- 
joining land,  the  lessee  was  required  to  pay  the  minimum  rent 
provided  for  in  the  lease,  so  long  as  he  retained  possession  for 
any  purpose  under  it,  although  the  coal  had  been  exhausted.^" 
And  if  the  lease  provide  that  its  surrender  should  release  the 
lessee  from  all  its  covenants  and  for  money  due,  yet  he  will  not 
be  released  by  the  surrender  unless  he  pay  all  rents  due  up  to 
the  time  he  gives  up  such  lease ;  ^^  for  such  a  provision  applies 
only  to  future  rent,  and  not  to  rent  due  at  the  time  of  the  sur- 
render.^^ Where  re;it  was  to  be  paid  if  no  well  was  completed 
within  the  first  year,  a  surrender  at  the  end  of  the  first  ten 
months  of  the  year  did  not  relieve  the  lessee  for  the  year's 
rent.^'' 

55  Phillips  V.  Vandergrift,  146  Pa.  Co.  v.  Blake,  13  Ind.  App.  680;  42 
St.  357;  23  Ail.  Rep.  347;  .Jackson  N.  E.  Rep.  234;  Smiley  v.  Western, 
V.  O'Hara,  183  Pa.  St.  233;  38  Atl.  etc.,  Co.,  138  Pa.  St.  576;  21  Atl. 
Hep.   624.  Rep.   1;    Leatherman  v.   Oliver,   151 

56  Lennox  v.  Vandalia  Coal  Co.,  Pa.  St.  64G;  25  Atl.  Rep.  309;  Og- 
ee Mo.  App.  560;  158  Mo.  473;  59  den  v.  Hatry,  145  Pa.  St.  640;  23 
S.    W.    Rep.    242;    Roberts    v.    Rett-  Atl.  Rep.  334. 

man,  45  W.  Va.  143;  30  S.  E.  Rep.  5o  Rreckenridge  v.  Parrott,  15  Ind. 

95.    '  App.  411;  44  N.  E.  Rep.  66. 

57  Douthett  V.  Gibson.  11  Pa.  Sup.  Whether  a  surrender  can  be  made 
Ct.  Rep.  543;  Aderhold  v.  Oil  Well  by  answer  to  a  complaint  to  recover 
Supply  Co.,  158  Pa.  St.  401;  28  royalties  due  arose  in  Bettman  v. 
Atl.  Rep.  22.  Shadle,  supra,  but  was  not  decided. 

5s  Edmonds   v.   Mounsey,    15   Ind.  See  also  Douthett  v.  Gibson,  11  Pa. 

App.  399;  44  N.  E.  Rep.  196;  Bett-  Sup.  Ct.  Rep.  543,  where  a  surren- 

man  v.   Shadle,   22   Ind.   App.   542;  der   was   made   after    suit   brought, 

.53  N.  E.  Rep.  662;   Columbian  Oil  but  full   rent   recovered. 


268  OIL    AND    GAS. 

§241.     Eviction. 

If  the  lessor  convey  the  leased  premises,  witliout  any  reserva- 
tion of  the  lessee's  right  to  enter  and  drill  for  oil  or  gas,  his 
act  will  be  a  constructive  eviction,  whicli  will  terminate  the  les- 
see's liability  for  rent.^"  Eviction  by  the  lessor,  of  course, 
terminates  the  lease. *'^  But  where  the  eviction  is  by  another, 
the  usual  rules  with  regard  to  the  rights  of  landlord  and  tenant 
prevail.  If  there  be  a  covenant  for  quiet  enjoyment,  either  im- 
plied or  expressed,  and  the  lessee  be  evicted  by  a  stranger,  he 
will  not  be  liable  for  rent,  thereafter  at  least. *^'  Where  the 
owner  of  coal  land  sold  the  coal  underneath  it,  reserving  to 
himself  the  right  to  drill  three  oil  wells  on  the  premises,  and 
then  leased  the  land  above  the  coal  for  oil  purposes;  and  the 
lessee,  to  avoid  litigation  with  the  purchasers  of  the  coal,  who 
denie.d  his  right  to  drill  the  w^ells,  paid  them  a  certain  sum,  it 
was  held  that,  though  the  lease  contained  words  of  grant,  tliis 
did  not  imply  a  covenant  for  quiet  enjoyment,  since  the  lease 
was  a  mere  right  to  operate,  and  that  tlie  act  of  the  lessee  in 
compromising  with  the  coal  OA\mers  was  no  defense  to  a  suit  for 
the  amount  due  under  the  lease.*'^ 

§242.     Rent  to  be  paid  if  well  not  drilled. 

It  is  a  very  common  clause  in  oil  or  gas  leases  that  if  a  well 
be  .not  dug,  or  if  it  be  not  dug  by  a  certain  time,  then  rent  for 
the  tract  leased  shall  be  paid,  either  after  a  certain  time,  or 
from  the  date  of  the  lease  if  the  well  be  not  dug  by  a  certain 
date.  Thus  where  a  lease  provided  that  tlie  lessee  should  have 
the   right  to  enter   on   certain   described   premises,    drill    and 

60  Mathews  v.  People's  Natural  lessor,  see  Line  v.  Stephenson,  5 
Gas  Co.,  179  Pa.  St.  165;  39  W.  N.  Bing.  N.  C.  183;  7  L.  J.  C.  P. 
C.  .^4;  36  Atl.  Rep.  216.  What  is  263;  7  Scott  69;  1  Arn.  385;  Mer- 
not  an  eviction,  see  Tiley  v.  Moyers,  rill  v.  Frame,  4  Taunt.  329. 

43  Pa.  St.  404.  63  Chambers  v.  Smith,  183  Pa.  St. 

61  Miller  v.  Michel,  13  Ind.  App.  122;  38  Atl.  Rep.  522.  For  an  evio- 
190;  41  N.  E.  Rep.  407.  tion    the    lessee    has    an    action    for 

62  Noke's  Case,  4  Rep.  80  b.  Cro.  damages.  Hoosac  Mining,  etc.,  Co. 
Eliz.  674.  If  the  covenant  is  only  v.  Donat,  10  Co'o.  529;  16  Pac.  Rep. 
for  a  quiet  enjoyment  as  against  the  157. 


RENTS  AND  ROYALTIES.  269 

operate  for  oil  and  gas,  erect  buildings  and  lay  all  necessary 
pi}3es  for  tlie  production  and  transportation  of  them  from  the 
pa-emises,  reserving  a  certain  portion  of  the  gas  and  oil,  but 
provided  tliat  the  lessor  leased  ''  one  acre  anywhere  out  of  tlie 
above  described  tract  for  a  test  well,  and,  if  oil  or  gas  is  found, 
then  "  the  lessee  "  has  the  balance  of  the  above  land  to  drill  at 
the  same  royalty  as  tlie  within  lease,"  upon  the  condition  that 
if  gas  only  be  found  the  lessor  should  receive  one  hundred  dol- 
lars for  "  each  well  "  ;  and  tlie  lessee  was  to  commence  oj^era- 
tions  within  thirty  days  from  the  dat-e  of  the  lease,  and  failing 
to  do  so,  to  pay  the  lessor  annually  five  dollars  per  acre  until 
a  well  was  completed;  it  was  held  that  the  right  granted  was 
absolute  to  take  all  the  gas  and  oil  under  the  entire  tract,  and 
failing  to  make  the  test  well,  five  dollars  per  acre  was  to  be 
annually  paid  the  lessor.*''*  Where  the  well  was  to  be  dug  within 
six  months,  and  on  failure  to  do  so,  a  rent  of  five  hundred  dol- 
lars a  year  was  to  l>e  paid  until  the  well  was  completed,  but 
the  tenant  had  the  right  to  protect  himself  from  "  further  pay- 
ments or  liabilities  "  accndng  under  the  lease,  by  a  surrender 
of  it,  it  was  held  that  a  surrender  made  eighteen  months  after 
its  date  did  not  release  the  lessee  from  the  five  hundred  dol- 
lars' rent  for  the  previous  year."^  Where  a  lease  provided  for 
a  certain  annual  rental,  payable  quarterly,  for  the  product  of 
each  well,  and  reserving  a  right  in  the  lessee  to  put  an  end  to 
the  lease  by  a  reconveyance,  it  was  held  that  the  liability  for 
gas  used  off  the  premises  was  not  limited  to  the  jieriod  of  time 
when  gas  was  actually  used,  but  if  gas  was  used  when  the  year 
commenced  the  whole  amount  for  that  year  then  became  due 
and  payable,  even  though  the  gas  was  not  used  for  the  entire 
year.*'*'  If  a  lease  provide  for  a  periodical  rental  until  a  well 
be  completed,  or  until  the  expiration  of  a  certain  fixed  term, 
the  lessee  is  bound  to  pay  the  rental,  even  though  he  does  not 
mthin  such  term  enter  on  the  land  and  complete  a  well,  unless 

64  Columbian  Oil  Co.  v.  Blake,  13       Co.,   158  Pa.  St.  401 ;   33  W.  N.  C. 
Ind.  App.   680;  42  N.  E.  Rep.  234.       336;  28  Atl.  Rep.  22. 

65  Aderhold    v.    Oil    Well    Supply  sg  Coulter  v.  Conemaugh  Gas  Co., 

30  Pittsb.  L.  J.   (X.  S.)  281. 


270  OIL    AND    GAS. 

the  lessor  prevent  him  from  doing  so.*'^  A  provision,  in  in- 
stances of  the  kind  given  above,  that  the  surrender  of  the  lease 
shall  he  a  satisfaction  of  all  damages  between  the  lessor  and 
lessee  applies  only  to  future  rent,  and  not  to  rent  due  at  the 
time  of  the  surrender. ''^  So  where  the  lease  contained  a  pro- 
vision that  it  should  bind  the  assignee,  and  provided  that  a  well 
should  be  completed  within  a  year,  or,  on  default  the  lessee 
pay  "  for  further  delay  a  yearly  rental "  until  the  well  was 
completed,  it  was  held  that  one  becoming  the  owner  of  a  one- 
half  interest  soon  after  the  lease  was  executed,  and  shortly  after 
the  expiration  of  the  first  year  becoming,  by  assignment  from 
the  original  lessee  of  the  remaining  interest,  the  sole  owner  of 
the  lease,  was  liable  for  the  rent  due  for  the  second  year,  the 
well  not  having  been  completed.®"  A  lease  provided  that  the 
lessee  should  have  the  right  to  drill  for  gas  in  three  tracts  of 
land  out  of  a  one  hundred-acre  tract,  and  bound  the  lessor  not 
to  grant  any  other  person  the  right  to  drill  on  this  one  hundred- 
flcre  tract.  The  lessee  agreed  to  furnish  gas  for  a  dwelling- 
house  and  the  lease  as  long  as  the  lease  was  in  force,  to  pay  one 
hundred  dollars  annual  rental  for  each  well,  pay  a  like  amount 
a  year  until  a  well  should  be  drilled ;  and  to  drill  one  well  by 
.a  certain  date,  and  pay  for  it  whether  drilled  or  not.  When- 
aever  gas  ceased  to  be  used  generally  for  manufacturing  jDur- 
poses  in  the  county,  the  lease  was  to  terminate.  It  was  held 
that  the  lessee  was  bound  to  drill  at  least  one  well,  and,  failing 
to  do  so,  he  must  pay  one  hundred  dollars  yearly  and  supply 
-gas  for  the  dwelling  house,  for  the  reason  that,  during  the  con- 
tinuance of  the  lease,  the  lessor  and  his  grantees  or  assigns, 
could  not  drill  or  permit  any  one  to  drill  on  the  one  hundred- 
;acre.  tract.^"  So  where  a  well  was  to  be  put  down  by  a  certain 
lime,  or  thereafter  the  lessee  must  pay  the  lessor  a  certain  sum 
annually  until  a  well  was  completed,  it  was  held  that  it  was  no 
excuse  for  the  lessee  that  "  soon  "  after  the  lease  was  executed 

6T  Lawson  v.  Kirchner,  50  W.  Va.  69  Breckenridge     v.     Parrott.     15 

•344;  40  S.  E.  Rep.  344.  Ind.  App.  411;  44  N.  E.  Rep.  66. 

68  Edmonds   v.   Mounsey,    15   Ind.  'o  Simpson  v.  Pittsburgh,  etc.,  Co., 

App.  399;  44  N.  E.  Rep.   196.  28   Ind.   App.    343;    62   N.    E.   Rep. 

753. 


KENTS  AND  ROYA"LTIES.  271 

it  was  discovered  that  the  territory  was  wortliless  for  gas  or 
oil,  and  for  that  reason  the  well  was  not  completed.  The  lessee- 
was  compelled  to  pay  the  annual  rent.'^  Where  a  stipnlated 
sum  was  to  be  annually  paid  if  there  was  delay  in  completing 
a  well,  and  no  date  was  fixed  when  the  rent  should  be  paid, 
it  was  held  that  it  fell  due  by  operation  of  law  at  the  end  of 
each  year/" 

§243.     Minimum  production  allowed. 

In  instances  of  mining  leases  there  is  often  a  requirement 
tliat  not  less  than  a  certain  amount  of  ore  shall  be  mined  and 
so  much  royalty  per  bushel  or  ton  paid  annually ;  and  if  less 
than  the  amount  be  mined,  yet  the  gross  amount  of  royalty  shall 
be  the  same  as  if  the  requisite  amount  had  been  mined ;  and 
if  more  than  the  requisite  amount,  then  the  gross  sum  of  royal- 
ties shall  be  increased  by  the  surplus  bushels  or  tonnage.  In 
an  instance  of  this  kind,  where  the  lessor  had  the  power  to 
terminate  the  lease  if  the  lessee  should  not  be  able  to  find  sufii- 
cient  ore,  it  was  held  that  until  tJie  lease  was  terminated  by 
the  lessor,  the  lessee  continued  liable  for  the  least  annual  sunf 
provided  for  by  the  leaseJ^  Occasionally  leases  of  this  char- 
acter allow  the  surplus  in  one  year  to  be  applied  to  the  deficiency 
<irising  in  another,  in  which  event  it  is  not  necessary  for  the 
deficiency  to  occur  before  the  excess  is  produced,  and  an  excess"- 
paid  for  in  one  year  may  be  applied  to  the  deficiency  of  a  sub- 
sequent year.'*  Where  mining  works  are  closed  a  part  of  tluv 
year,  without  the  lessee's  fault,  he  must  pay  an  amount  of  the' 
minimum  royalty  bearing  the  same  proportion  to  the  whole  that 

"1  Springer    v.     Citizens'    Natural  not  limited  to  a  recovery  of  liquidat- 

fias   Co.,    145   Pa.    St.   430;    22   Atl.  ed  damages. 

Rep.  986.  73  Lehigh    Zinc    and    Iron    Co.    v.. 

72  Lynch    V.    Versailles    Gas    Co.,  Bamford,    150   U.    S.   005;    14    Sup. 

105  Pa.   St.   518;    30  Atl.   Pvep.  984.  Ct.  Rep.  210,  affirming  33  Fed.  Rep. 

See  also  Woodland  Oil  Co.  v.  Craw-  077.     This    rental    was    poyahle    a'l- 

ford,    55    Ohio    St.     101;     30    Ohio  nually,    and    not    postponed    to    the 

Wkly.  L.  Bull.  231 ;   44  N.  E.  Rep.  end  of  the  term. 

1093;   34  L.  R.  A.  02,  where  it  was  74  Mclntyre  v.  Mclnt.yre  Coal  Co.^ 

lield  that  the  sum   recoverable  was  105  N.  Y.  204;  11  N.  E.  Rep.  645. 
rentals  as  such,  and  the  lessor  was 


272  OIL    AND    GAS. 

the  part  of  tlie  year  mining  ojDerations  were  carried  on  bears 
to  the  whole  year.'^  In  an  instance  of  the  kind  nnder  discus- 
sion, where  the  lease  provided  for  the  payment  of  a  certain  sum 
j>er  month  as  the  minimum  amount  of  royalty,  even  though  no 
coal  were  mined,  the  minimum  royalty  was  regarded  as  liquida- 
ted damages,  and  not  as  a  penalty.'" 

§244.     Consideration  for  lease  may  be  purchase  money. 

The  consideration  of  a  lease  or  an  instrument  giving  a  right 
to  take  mineral,  oil  or  gas  from  the  premises,  may  not  be  rent 
at  all,  but  purchase  money  for  the  mineral  or  oil  taken  out  of 
the  earth.  Thus  where  the  o^vner  of  land  sold  all  the  mineral 
under  it,  granting  to  the  vendee  the  right  to  enter  on  the  prem- 
ises and  dig,  explore  therein,  and  occupy  them  with  all  necessary 
structures,  and  mine  and  remove  all  coal,  paying  to  the  vendor 
a  certain  ]>rice  jier  ton  of  coal  removed,  payable  quarterly,  it 
was  held  that  the  stipulated  price  was  purchase  money  of  the 
real  estate,  not  of  the  mineral  removed,  for  which  the  vendor 
had  a  lien  on  the  coal  not  mined  and  removed,  the  payment  of 
so  much  per  ton  being  only  n  mode  of  determining  the  amount  of 
the  purchase  money  to  be  paid.^"  So  a  lease  of  all  the  coal  in 
a  certain  tract  of  land  until  it  should  all  l)e  mined  and  removed, 
the  consideration  being  tlie  payment  of  a  royalty  and  also  an 
annual  minimum  rental,  whether  coal  was  mined  or  not,  and 
providing  for  a  forfeiture,  was  held  to  be  a  sale  of  the  coal  and 

"Coaldale,  etc.,  Co.  v.  Clark,  43  S.)   342;  7  W.  R.  141;  33  L.  T.  11; 

W.  Va.  84;  27  S.  E.  Rep.  294.  Hope's   Appeal    (Pa.),    3   Atl.    Rep. 

70  Consolidated  Coal  Co.  v.  Peers,  23;   2  Cent.   Rep.  43;   29  W.  N.  C. 

150  111.  344;   37  N.  E.  Rep.  937.  365;   Lazarus'  Est.,   145   Pa.   St.   1; 

•77  Manning  v.  Frazier,  96  111.  279;  29  W.  N.  C.  36;   Hancock's  Est,  7 

Faircjjild  v.  Fairchild   (Pa.).  9  Atl.  Kiilp.  36;  Kingsley  v.  Hillside  Coal 

Rep.  255;   Duflf's  Appeal,  21  W.  N.  Co.,   144  Pa.  St.  613;   29  W.  N.  C. 

C.    (Pa.)    491;    Hatherton   v.    Brad-  368;   23  Atl.  Rep.  253;   Finnegan  v. 

bourne.   13   Sim.   599;    13  L.  J.  Cli.  Pennsylvania    Trust    Co.,    144    Pa. 

171;   7  Jur.  1100;  Taylor  v.  Evans,  St.  613;  Delaware,  etc.,  Co.  v.  San- 

1    H.   and    N.    101;    25   L.   J.   Exch.  derson,  109  Pa.  St.  583;  1  Atl.  Rep. 

269;  Foley  v.  Fletcher.  3  H.  and  N.  394. 
779:  2  L.  J.  E.xch.   100;   5  Jur.    (N. 


ke:!^ts  axd  royalties.  273 

the  rental  and  royalty  purchase  money ;  but  a  failure  to  pay  the 
rent  ended  the  lease."^ 

§245.     Consideration  for  g^rant  part  of  minerals,  creates  an  ex- 
ception. 

It  will  readily  he  observed  that  when  the  grantor  or  lessor 
reserves  a  part  of  the  minerals,  oil  or  gas  mined  or  taken  out  of 
the  earth,  such  mineral,  oil  or  gas  thus  reserved  cannot  be  said 
to  be  strictly  "  rent,"  within  the  meaning  of  the  definition  of 
that  term  as  applied  to  letting  land  generally,  for  it  is  not  a 
profit  issuing  out  of  tlie  land,  but  a  part  of  the  land  itself.  It  is 
in  fact  neither  a  rent  nor  a  resen'ation,  but  an  exception.  Tne 
interest  in  the  part  resented  or  retained  never  passes  out  of  the 
lessor,  but  remains  in  him."^"  Thus  a  wiie,  and  her  husband 
conveyed  real  estate  in  fee  simple  by  deed,  reserving  by  recital 
to  themselves,  and  did  not  convey  by  the  deed,  the  equal  one- 
half  part  of  the  usual  royalty  of  one-eighth  of  all  the  oil  under- 
lying the  tract.  The  grantee  then  leased  the  premises,  giving 
the  exclusive  right  to  drill  and  operate  for  oil  and  gas,  reserv- 
ing onereighth  of  all  the  oil  obtained  as  produced  in  the  crude 
state.  It  was  held  that  the  recital  in  the  lease  was  a  reser\'a- 
tion  to  the  gi'antee  (or  lessor)  of  onei-eighth  of  the  oil  which 
had  vested  in  him,  and  not  of  the  one-sixteenth  which  was  out- 
standing in  the  wife.  It  was  considered  that  he  had  not  reserved 
any  part  of  the  oil  which  was  considered  to  be  vested  in  the 
wife.'** 

§246.     One  well  draining  two  tracts  of  land. 

The  o^^^lel's  of  two  separate  tracts  made  a  joint  lease  of  them. 
The  lessee  drilled  a  well  only  on  one  tract,  but  this  well  drained 
the  other  tract.      It  was  held  that  the  o^^^ler  of  the  tract  on 

78  Lehigh,  etc..  Co.  v.  Wright.  177  ^9  Harris  v.  Cobb,  49  W.  Va.  350; 

Pa.  St.  387;    35  Atl.   Rep.  219;   Le-  38  S.  E.  Rep.  559;   Busbey  v.  Rus- 

high.  etc.,   Co.  V.  Wilkesbarre,  etc.,  sell,   18   Ohio  Cir.   Ct.   Rep.    12;    10 

Co.,    8    Kulp.    (Pa.)     .540.     But   see  Ohio  C.  D.  23. 

Barrs  v.  Lea,  33  L.  J.  Ch.  437.  so  Harris  v.  Cobb,  supra. 


274  on.    AND    GAS. 

which  the  well  was  drilled  was  not  entitled  to  a  royalty  on  all 
the  oil  produced  through  the  Avell,  on  the  theory  of  confusion  of 
goods;  but  was  entitled  to  an  amount  equal  to  the  area  his 
land  bore  to  the  entire  area  of  the  two  tracts.®^  Where  a  lessee 
took  a  separate  lease  for  oil  on  A  and  B  tracts,  which  adjoined 
each  other,  stnd  then,  drilling  a  well  on  tract  A  near  the  line  be- 
tween the  two,  by  agi'eement  of  all  concenied,  he  gave  notice  to 
the  owner  of  tract  B  on  which  he  had  drilled  no  well,  that  if  the 
well  drilled  on  tract  A  proved  to  be  a  paying  well,  he  would  put 
doAvn  another  one  on  tract  B  near  the  line  as  an  offset;  and  this- 
was  done.  It  was  held  that  he  did  not  have  to  account  to  the 
o^^mer  of  tract  A  for  the  oil  taken  from  the  well  on  tract  B.^" 

§247.     Oral  change  of  lease  discharging  or  changing  rents. 

A  written  lease,  after  its  execution,  may  be  so  modified  by 
parol  as  to  discharge  the  lessee  from  all  liability  to  pay  rent 
that  was  due  imder  it  according  to  its  written  terms ;  "''  or  the 
amount  of  the  royalty  may  be  reduced  by  parol.  And  if  the 
reduction  be  made  in  order  to  induce  the  lessee  to  remain  in 
possession,  the  reduction  will  l)e  supported  by  a  sufficient  con- 
sideration to  make  it  binding  where  it  is  acted  upon  and  carried 
out  for  many  years  to  the  accejitance  of  all  concerned,  although 
the  lessee  might  have  been  liable  for  damages  if  he  had  refused 
to  carry  out  the  original  lease.*** 

§248.     Failure  of  oil,  royalty  ceases. 

If  the  oil  is  exhausted  the  royalty  ceases,  even  tliough  the  en- 
gagement of  the  lessee  is  to  pay  during  the  tenu  a  royalty  on 
so   much  oil   whether   produced   or  not.      Thus  where   an   iron 

8J».Kleppner  v.  Lemon,  108  Pa.  St.  505.     See    INIeeker    v.    Browning,    0 

581;  48  Atl.  Rep.  483.  Ohio  C.  D.  108;   17  Ohio  C.  C.  548. 

s2Colgan   V.    Forest   Oil   Co.,    104  si  Sargent   v.   Eobertson.    17    Inrl. 

Pa.   St.   234;    75  Am.   St.  Rep.  605;  App.  411;  46  N.  E.  Rep.  925;  Mon- 

30  Pittsb.  L.  J.   (N.  S.)   213;  45  Atl.  roe  v.  Perkins,   9  Pick.   298;   Latti- 

Rep.   119.  more  v.  Harsen.  14  Johns.  330.     See 

83  Crawford  v.  Bellevup,  etc.  Gas  Hunter  v.   Apollo   Oil   and  Gas  Co. 

Co.,   183   Pa.   St.  227;    38  Atl.   Hep.  (Pa.).  54  Atl.  Rep.  274. 


EENTS  AND  ROYALTIES.  275 

-mining  lease  was  taken  for  a  term  of  years,  the  lessee  to  mine 
annually  siicli  quantities  of  ore  as  would  produce  a  stipulated 
sum  of  royalty,  and  if  he  did  not  mine  it,  pay  the  royalty  any 
way,  and  the  ore  became  exhausted  before  the  end  of  the  term  — 
it  was  held  that  the  obligation  to  pay  royalty  ceased  with  the 
exhaustion  of  the  ore.^^ 

§249.     Rent  for  exhausted  well, —  flooded  well. 

So  thoroughly  embedded  in  the  law  pertaining  to  the  pro- 
duction of  oil  and  gas  is  the  idea  that  all  liabilities  and  rights 
must  turn  upon  a  productive  field  or  lease,  that  a  failure  of  a 
gas  or  oil  well  may  stop  the  accruing  of  periodical  rent, 
even  where  the  express  language  of  the  lease  makes  no  reference 
to  a  cessure  of  payment  in  case  the  well  should  become  ex- 
hausted. Thus  where  the  lease  was  to  run  twenty  years,  and 
for  each  gas  well  a  rent  of  five  hundred  dollars  jx?r  annum  was 
to  he  paid ;  and  before  the  end  of  the  second  year  the  well,  with- 
out fault  of  the  o|5erators,  was  flooded  with  salt  water  and  eeas^^d 
to  produce  gas,  it  was  held  that  the  third  year's  rent  could  not 
be  collected,  for  the  reason  tliat  there  should  be  read  into  the 
lease  this  implied  agreement  or  understanding  that  the  well  to 
be  paid  for  at  the  stipulated  price  was  not  only  to  be  a  gas  well 
but  to  remain  a  gas  well,  and  that  when  it  ceased  to  produce  gas 
it  ceased  to  be  a  gas  well.*'' 

§250.     Instances  of  lessee's  liability. 

A  notice  of  an  election  on  the  part  of  the  lessee  of  his  determi- 
nation to  terminate  the  lease  at  the  beginning  of  the  next  en- 
suing year  will  not  relieve  him  from  the  payment  of  the  rent 
for  the  current  year ;  and  where  the  lease  began  from  a  certain 
day,  to  run  twenty-one  years,  on  which  day  the  lessee  paid  a 

«5  Hewitt  Iron  Mining  Co.  v.  Des-  346.     See   also   Williams  v.   Guffey, 

sail  Co.,   129  Mich.  — ;;    80  X.   W.  178  Pa.   St.  342;   35  Atl.  Eep.  875, 

Rep.   365.     See  Adams  v.  Stage,   18  and    McKnight    v.    ]\Ianufacturers', 

Pa.  Super.  Ct.  308.  etc..   Cxas  Co..    146   Pa.   St.    185;   23 

86McConnell  v.  Lawrence,  etc..  Atl.  Pvcp.  164;  28  Am.  St.  Rep.  790. 
■Gas   Co.,   30   Pittsb.   L.   J.    (X.    S.) 


276  OIL    AND    GAS. 

year's  rental,  and  on  the  same  day  one  year  thereafter  he  gave 
notice  of  his  intention  to  terminate  the  lease,  it  was  held  that  he 
was  liable  for  a  second  year's  rent,  for  npon  that  day  a  second 
year's  rent  was  due  and  the  notice  not  having  been  given  "until 
then,  he  was  liable  for  it.^^  If  the  lessor  neglect  to  demand  rent 
for  the  lessee's  failure  to  complete  a  well  by  a  certain  time,  that 
will  not  defeat  its  collection  thereafter.^*  Such  action  is  not 
laches.  Where  the  lessee  is  to  receive  so  much  per  well  so  long 
as  gas  is  sold  oif  the  premises,  and  the  lessee  desires  to  escape  on 
the  ground  that  gas  has  not  been  sold  off  the  premises  during 
the  period  for  which  the  action  is  brought  to  recover  rent,  he 
must  show,  and  he  has  the  burden  to  do  so,  a  legal  excuse  wdiy 
gas  has  not  been  sold,  to  escaj^e  liability.*^  If  the  measure  of 
his  liability  is  to  pay  so  long  as  the  w^ells  produce  gas,  and  the 
flow  ceases,  he  will  be  relieved  from  his  liability ;  and  if  he  was 
to  pay  an  annual  rental,  and  the  flow  ceased  during  the  year, 
he  will  be  liable  to  pay  only  such  a  portion  of  the  yearly  amount 
as  the  time  the  wells  produced  bears  to  the  entire  year.®"  A 
payment  of  an  installment  or  installments  when  not  liable,  will 
not  prevent  the  lessee  setting  np  the  invalidity  of  the  lease  for 
installments  falling  due  thereafter.®^  Somewhat  at  variance 
with  the  case  given  above  is  an  Ohio  case.  A  lease  gave  the  right 
to  ojierate  for  oil  and  gas,  and  if  only  gas  was  found,  the  lessee 
should  pay  a  fixed  sum  per  year  for  each  well  ''  while  the  same 
is  being  used  off  the  premises,"  but  contained  no  stipulation  in- 
consistent therewith ;  it  was  held  that  the  lessee  w^as  not  liable 
to  pay  such  sum  for  a  gas  well  whose  product  was  not  so  used, 
even  though  it  might  be  nsed  off  the  premises  without  loss  to 
the  lessee."" 

87  Nesbit  V.  Godfrey,   155  Pa.   St.  oo  Moon    v.    Pittsburgh,    etc.,    Co., 

251-i^  25  Atl.  Rep.  621.  24  Ind.  App.  34;  56  N.  E.  Rep.  108. 

S8  Pittsburgh     Consolidated     Coal  oi  Diamond     Plate    Glass    Co.    v. 

Co.  V.  Greenlee,  164  Pa.  St.  549;  30  Tennell,  22  Ind.  App.  132;  52  N.  E. 

Atl.   Rep.  489.  Rep.  168. 

89  lams  V.  Carnegie,  etc.,  Co.,  194  02  Ohio  Oil  Co.  v.  Lane,   59   Ohio 

Pa.    St.    72;    45    Atl.    Rep.    54.     See  St.    307;    52    N.    E.    Rep.    791;    40 

Ohio   Oil   Co.  V.   Lane,   59   Ohio   St.  Wkly.    L.    Bull.    404;    41    Wkly    L. 

307;  52  N.  E.  Rep.  791,  below.  Bull.  121. 


RENTS  AND  KOYALTIES.  27T 

§251.     Account  rendered. 

Where  tlie  lessee  is  to  render  to  the  lessor  periodical  accounts 
of  tlie  amount  mined,  and  he  renders  snch  accounts  and  makes 
payments  based  thereon,  which  are  received  without  objection, 
such  accounts  are  conclusive  on  the  lessor,  in  the  absence  of  full 
and  satisfactory  evidence  of  fraud  and  mistake.  They  are  re- 
garded in  the  nature  of  settlements."^ 

§252.     How  collected. 

What  kind  of  an  action  must  be  brought  to  recover  rent  or 
royalty  due  will  depend  on  the  circumstances  of  each  particular 
case.  Thus  if  the  amount  is  dependent  on  the  amount  of  oil 
or  mineral  taken  out,  a  bill  in  equity  will  lie  to  compel  an  ac- 
counting by  the  lessee.'**  Where  a  lease  was  for  the  privilege  to 
bore  salt  wells  and  manufacture  salt,  the  rent  being  every 
tAvelfth  barrel  manufactured ;  and  oil  rose  in  the  well,  which  the 
lessee  converted  to  his  own  use,  claiming  a  right  to  all  of  it,  it 
was  held  that  trover  would  not  lie  for  the  lessor  to  recover  his 
share,  for  he  had  never  had  possession  of  any  part,  of  it ;  but  his 
remedy  was  an  action  for  an  accounting."^  If  periodical  pay- 
ments are  to  be  made  of  fixed  amounts  at  specified  times,  then 
the  action  must  be  upon  the  covenants  in  the  lease  when  it  is 
under  seal,  which  would  be  an  action  of  debt  or  covenant.""  If 
the  lease  be  not  under  seal,  or  if  the  letting  be  an  oral  one,  then 
an  assumpsit  lies  where  the  amount  is  fixed  and  definite."^     An 

93  Sillingford  v.  Good,  9.5  Pa.  St.  95  Kier    v.    Peterson,    41    Pa.    St. 

25;  Drake  v.  Lacoe,  157  Pa.  St.  17;  357.     See    National    Transit    Co.    v. 

27  Atl.  Rep.  538.  Weston,   121   Pa.  485;    15  Atl.  Rep. 

If  the  rent  is  payable  in  bank  in  560. 

cash,    payment    by    check    drawn   in  so  Richards    v.    Killani,    10    Mass. 

favor  of  lessor  and  deposited  in  the  239;   Warren  v.  Ferdinand,  9  Allen 

bank,    will    operate    as    a    payment.  357;    Codman  v.   Jenkins,   14   Mass. 

Friend  v.   Mallory,   52   W.  Va.   — ;  93;    Boston  v.  Binney,   11    Pick.   1; 

43   S.  E.  Rep.   114.  Burnham  v.  Roberts,  103  Mass.  379; 

8*  Swearingen  v.  Steers,  49  W.  Va.  Smiley    v.    McLauthlin,    138    Mass. 

312;   38   S.  E.  Rep.   510;    Bishop  of  ,363;    Miller    v.    Blow,    68    111.    304; 

Winchester   v.   Knight,    1    P.   Wms.  York  v.  Jones,  2  N.  H.  454. 

406;     Clavering    v.    Westley,    3    P.  o- wills    v.    Manufacturers',    etc.. 

Wms.   402.  Gas   Co.,    130  Pa.   St.   222;    18   Atl. 


278 


OIL    AND    GAS. 


allegation,  in  a  complaint  to  recover  payments  under  a  lease, 
that  such  payments  were  due  and  payable  under  its  terms  is  a 
sufficient  allegation  that  the  lease  is  still  in  force."^  Mere  delay 
in  bringing  an  action  if  it  is  not  barred  by  the  Statute  of  Lim- 
itations is  no  defense."^ 

§253.     Lien  of  royalty  accruing  during  receivership. 

If  royalty  accrue  from  an  insolvent  mining  corporation  during 
a  receivership-,  it  will  be  a  first  charge  on  the  funds  in  the  hands 
of  the  receiver.^"" 

§254.     Assignment  of  lease  does  not  carry  oil  in  tank  on  premises. 

A  sale  of  a  lease  does  not  carry  the  oil  pumped  out  and  in  the 
tank  on  the  premises;  and  parol  evidence  is  not  admissible  to 
show  that  it  was  intended  by  a  sale  of  the  lease  to  sell  the  oil 
that  had  been  pimiped  from  the  well.^"^ 


Rep.  721;  5  L.  R.  A.  602.  See 
Brown  v.  Magorty,  156  Mass.  209; 
30  N.  E.  Rep.   1021. 

98  Central  Trust  Co.  v.  Berwind- 
White  Coal  Co.,  95  Fed.  Rep.  391. 

A  lessor  reserving  a  lien  on  "  all 
ore  mined,"  for  royalties,  may  re- 
cover, in  an  action  of  tort,  of  the 
lessee  who  not  only  fails  to  pay 
royalties,  but  sells  the  ore  with- 
out reserving  the  lien.  Iron  Duke 
Mine  v.  Braasted,  112  Mich.  79;  70 
N.  W.  Rep.  414.    . 

99  Ahrns  v.  Chartiers  Valley  Gas 


Co.,  188  Pa.  St.  249;  41  Atl.  Rep. 
739. 

In  Greenough's  Appeal,  9  Pa.  St. 
18,  it  was  held  that  distress  lay  for 
royalty  due  from  a  coal  mine.  The 
rent  was  also  considered  a  preferred 
claim.  See  also  Oram's  Estate,  5 
Kulp.  (Pa.)  423,  and  Jones  v. 
Strong,  5  Kulp.   (Pa.)   7. 

100  Allison  V.  Coal  Creek,  etc.,  Co. 
(Tenn.),  3  Pick.  60;  9  S.  W.  Rep. 
226. 

loiMcGuire  v.  Wright,  18  W.  Va. 
507.  See  Dresser  v.  Transportation 
Co.,  8  W.  Va.  553. 


CHAPTER  VIII. 

WHO  IWAY  MAKE  A  LEASE. 

§255.  Owner  of  land  may  grant. 

§250.  Infants.—  Lunatics. 

§957  ;MarritHl  women. 

§258.  Wife  joining  l.usband  in  lease— Homestead. 

^255.     Owner  of  land  may  grant. 

It  is  elcuentavv  to  say  that,  the  (.vntcr  of  the  fee  simple  of  a 
tract  of  laml  may  give  a  lease  to  bore  for  gas  or  o.l  tipon  it      He 
mav  .10  this  as  readily  as  he  may  sell  the  fee;  a.d  to  d.seuss 
the  matter  farther  would  l>e  a  useless  act. 
8256.    Infants. —  Lunatics. 

Gas  an.l  ..il  in  land  are  a  part  of  it,  and  an  infant  o^ing  the 
„nd  has  no  more  power  over  them  than  he  has  over  the  ee  s.m,|^e 
of  such  land.    They  are  minerals,  a  part  of  the  land.    He  can  no 
more  grant  a  lease  of  the  land  to  bore  for  oil  or  gas  than  he 
can  ™nt  a  lease  of  the  land  for  agricultural  purposes,  or  con- 
vey Sie  fee  simple  of  it.     A  lease  of  the  land  for  gas  or  o,l  pur- 
poses must  be  made  by  the  infant's  guardian,  as  m  an  instance 
of  a  lease  of  an  infant's  lands  for  coal  mining.      In  the  case 
of  a  lunatic  the  lease  must  be  execute.l  by  his  committee.-     bsu- 
allv  the  court  will  authorize  the  execution  of  a  lease,  if  it  be 
shm™  that  it  would  be  for  the  benefit  of  the  infant,'   or  tlie 
lunatic.'     Where  a  statute  requires  the  court  to  approve  a  con- 

\     i>    Q71  3  Camden  v    Murrcv,  Ifi  Cli.  Div. 

iLyddal  V.  Clavenng,  Amb.   3^1,  ^^™^""     '              ]  ^^  ^   T.  661; 

note-    Tullit   v.    Tullit,    Amb.    3.0.  161 ;  oO  L.  J.  Ch.  -«- ,  4i 

Stoughton's  Appeal.  88  Pa.  St.  108  29  W.  R.  190. 

2  }n  re  Sm7th.  L.  E.  10  Cb.  App.       parte  Tabbart,.  6  Ves.  428. 

70;  23  W.  R.  207. 

279 


280  OIL    AND    GAS. 

veyance  or  lease  of  a  ward's  lands  by  his  guardian,  a  lease  for  gas 
•or  oil  must  be  approved  by  the  court,  or  it  will  be  void.^  Where 
a  will  gave  seven-tenths  of  certain  real  estate  to  infants,  subject 
to  a  life  estate,  giving  power  to  api)()int  the  life-tenant,  it  was 
held  that  the  interest  of  the  infants  was  a  vested  one ;  and  that 
any  judicial  sale  under  a  decree  to  which  they  were  not  parties, 
except  by  representation,  was  void.  It  was  also  held  that 
neither  the  life-tenant  nor  the  owners  of  the  other  three-tenths 
had  any  right  to  drill  for  gas  or  oil ;  and  the  fact  that  the 
grantee  had  expended  large  sums  in  developing  the  premises 
was  not  sufficient  to  esto]>  the  infant  remaindermen  from  en- 
joining the  purchaser  or  his  grantee  from  taking  oil  or  gas  from 
the  land.  N^or  was  the  fact,  that  they  had  not  made  themselves 
parties  to  the  suit,  or  that  they  knew  other  claimants  to  the  land 
had  been  bought  off,  sufficient  to  estop  them.**  Of  course  an  in- 
fant's conveyance  or  lease  is  voidable,  and  not  void;'  and  tlu' 
same  is  true  of  an  insane  jjerson  not  adjudged  insane  and  under 
guardianship.®  But  a  sale  by  the  guardian,  in  case  of  insanity, 
without  the  approval  of  the  court,  where  a  statute  requires  an 
approval,  is  void,  not  voidable ;  and  this  is  tnie  of  a  guardian's 
lease  of  such  land  for  oil  purjx)ses.^  A  father  cannot  sell  his 
children's  land  nor  the  mineral  in  it;  and  if  he  sell  the  land, 
although  he  give  his  children  other  lands  in  the  lieu  of  those 
sold,  the  title  of  the  land  still  remains  vested  in  them,  and  they 
may  recover  from  the  purchaser  the  value  of  the  minerals 
mined. ^° 

§257.     Married  women. 

A  married  womau  can  no  more  give  a  lease  of  her  lands  for 
gas,  oil  or  mining  purposes  without  her  husband  joining  her 

5  Stou_iohton's  Appeal,  supra.  s  Riggan  v.  Green,  80  N.  C.  23G ; 

,      G  Williamson  v.  Jones,  39  W.  Va.  Grouse  v.  Holdman,  19  Ind.  30. 

231;   19  S.  E.  436;  25  L.  R.  A.  222;  o  South  Penn.  Oil  Go.  v.  Mclntiro, 

Williamson    v.    Jones,    43    W.    Va.  44  W.  Va.  29G;  28  S.  E.  Rep.  922; 

562;  27  S.  E.  Rep.  411;  38  L.  R.  A.  Stoughton's  Appeal.  88  Pa.  St.  198. 

094.  I''  Keyes   v.   Pittsburgh,   etc.,   Co., 

TEngleberth    v.    Troxell,    40   Neb.  58  Ohio  St.  246;  50  N.  E.  Rep.  911; 

195;    58    N.    W.    Rop.    852;    Gole   v.  41  L.  R.  A.  681. 
Pennoyer,  14  111.  158. 


WHO   MAY   MAKE  A  LEASE.  281 

than  she  can  convey  such  lands  without  her  husband  joining  in 
the  conveyance.  In  the  case  of  a  deed,  the  separate  deed  of  tlio 
wife  is  void;  ^^  and  to  make  conveyance  of  her  land  valid  her 
husband  must  join  with  her  in  the  deed  of  conveyance ;  the  title 
cannot  be  conveyed  by  their  separate  deeds. ^'  The  deed  must 
conform  Avith  the  law  of  the  State  where  the  land  lies  or  it  will 
be  void."  The  same  rules  apply  to  a  married  woman  execut- 
ing a  lease  on  her  lands  for  oil  or  gas  purposes.  Thus  where  all 
the  disabilities  of  a  married  woman  were  canceled  by  a  statute, 
it  being  provided  that  "  all  the  rents,  issues,  income  and  profits  " 
of  her  real  estate  should  "  be  and  remain  her  own  separate 
])roperty,  under  her  control,  the  same  as  if  she  were  unmar- 
ried "  ;  but  it  was  also  provided  that  a  married  woman  should 
have  no  power  to  convey  or  encumber  her  property  without  her 
husband  joined  her  in  the  deed  of  conveyance  or  in  the  instru- 
ment placing  an  incumbrance  on  her  land,  it  was  held  that  her 
contract  conveying  all  the  oil  or  gas  on  a  certain  named  tract  of 
land,  and  giving  the  right  to  enter  on  the  premises  at  all  times 
for  tlie  purpose  of  drilling  and  oj^erating  for  oil  or  gas,  and  to 
erect  and  maintain  all  necessary  structures,  and  lay  all  pipes 
necessary  for  the  production  and  transportation  of  oil  and  gas 
taken  from  the  premises,  was  void.  This  lease  was  void,  because 
the  husband  of  the  owner  had  not  joined  her  in  its  execution. 
■"  While  oil  and  gas,"  said  tlie  court,  "  remain  in  the  earth  with- 
in their  natural  reservoirs  or  pockets  they  are  parts  of  the  realty 
itself  as  much  as  are  stone,  coal,  lead  or  iron  or  any  other  solid 
or  suKstantive  mineral,  and  the  sale  of  the  real  estate  carries 
with  it  the  ownership  to  all  that  lies  beneath  the  soil,  which,  in 
case  it  be  stone,  coal,  lead  or  iron,  vests  in  the  purchaser  the 
absolute  ownership  therein,  while,  if  there  is  water,  oil  or  gas 
in  or  on  the  land  the  purchaser's  OA\mership  is  absolute  so  long 
as  it  remains  in  or  on  his  land,  but  when  it  escapes  therefrom 

11  Kinnaman  V.  Pyle,  44  Ind.  275;  isStull  v.  Harris,  51  Ark.  294  ;    11 

Mettler  v.   Miller,    129    111.   630;    22  S.   W.   Rep.    104. 

N.   E.  Rep.   529;   Central  Land  Co.  i-5  Glidden  v.  Simpler,  52  Pa.  St. 

V.  Laidley.  32  W.  Va.   134;  9  S.  E.  400;    Central   Land   Co.   v.   Laidley, 

Rep.  61;  White  v.  Wager,  25  N.  Y.  supra;  Leftwieh  v.  Neal,  7   W.  Va. 

328;    Winans   v.   Peebles,   32   N.   Y.  569. 
423. 


282  OIL    AND    GAS. 

it  is  lost.  In  this  view  of  the  case,  if  the  ii})pellee  could  sell 
the  gas  or  oil  which  might  be  found  in  or  under  her  real  estate 
without  her  husband  joining  with  her,  she  could  also  sell  tlie 
stone,  coal,  lead  and  iron  which  might  be  found  there,  <  r  even 
the  soil  itself,  thus,  if  not  parting  with,  in  fact  destroying,  tlu' 
real  estate  itself.  But  if  we  were  to  hold  the  gas  and  oil  found 
beneath  the  soil  is  not  a  part  of  the  land  itself  the  result  in  this 
case  must  be  the  same,  for  under  the  terms  of  this  contract  the 
appellant  had  the  right  to  go  upon  the  premises  not  only  to  sink 
gas  and  oil  wells,  but  also  to  erect  and  maintain  thereon  '  all 
buildings  and  structures  and  lay  all  pipes  necessary  for  the  pro- 
duction and  transportation  of  oil  taken  from  said  premises.' 
These  rights  are  of  necessity  exclusive  in  their  nature  and  would 
vest  in  the  appellant  rights  in  the  property  or  real  estate  itself^ 
and,  if  valid,  might  be  enforced  to  the  exclusion  of  the  appellee. 
The  statute  especially  withholds  from  married  women  the  right 
in  any  manner  to  encumber  or  convey  away  their  separate  real 
estate  except  their  husbands  join  with  them."  It  was  further 
held,  that  inasmuch  as  her  lease  was  void,  slie  could  not  encum- 
ber it  against  her  lessee,  the  lease  binding  neither  the  lessor  nor 
the  lessee.^*  In  that  State  an  ordinary  lease  of  agricultural 
lands,  for  the  purpose  of  cultivation,  although  carrying  an  in- 
terest in  land,  has  been  held  not  to  fall  witliin  the  inhibition  of 
the  statute  quoted  above.^^  And  in  a  case  by  the  Supreme  Court 
of  th^^t  State,  decided  after  the  case  was  decided  by  the  Appel- 
late Court  of  the  same  State  from  which  the  quotation  above  was 
made,^*'  it  was  held  that  a  married  woman  could  execute,  witli- 
out  her  husband  joining,  a  lease  on  her  land  for  the  purpose  of 
operating  on  it  a  gas  or  oil  well,  it  not  being  an  encumbrance  or 
conveyance  of  the  land  within  the  meaning  of  the  statute  pro- 
hibiting a  married  woman  incumbering  or  conveying  her  land 

1*  Columbian  Oil  Co.  v.  Blake,  13  the    amount    involved,    and    in   rare 

Ind.  App.  680;  42  N.  E.  Rep.  234.  instances   an   appeal   lies   from   the 

15  Pearcy  v.  Henley,  82  Ind.  129;  Appellate    to    the    Supreme    Court. 

Nash  V.  Berkmeir,  83  Ind.  536.     See  The  former  is  bound  by  the  law  as 

Indianapolis  v.  Kingsbury,  101   Ind.  declared     by     the     latter,     whether 

200;    51    Am.   Rep.   749.  there  is   an   appeal   from  one  court 

10  The    jurisdiction    of    the    two  to  the  other  or  not. 
courts  depends,  in  civil  cases,  upon 


WHO   MAY   MAKE   A  LEASE. 


283 


without  her  husband  joining  in  tlie  execution  of  the  instrument 
of  conveyance  or  incumbrance.     "  Leases  of  the  dxaraeter  of 
the  present,"  said  the  court,  ''  differ  from  the  ordinary  agricul- 
tural lease,  in  that  the  former  may  carry  a  substantial  and  en- 
during interest  in  the  freehold,  while  the  latter  vests  but  a  tran- 
sient and  temporaiy  interest,  that  of  raising  and  removing  crops. 
The  fonner,  however,  in  their  primary  effect,  part  with  no  im- 
mediate title  or  estate,  and  carry  but  right  of  exploration,  any 
title  or  estate  which  may  be  contemplated  remaining  inchoate 
and  of  no  effect  until  the  oil  or  gas  is  found."     For  the  purposes 
of  prospecting,  such  leases  involve  a  mere  use,  and  part  with  no 
greater  interest  in  the  freehold  than  the  ordinary  agricultural 
lease.     We  have  here  no  question  of  the  effect  of  the  instru- 
ment of  ^[rs.  Swain  to  carry  a  freehold  estate,  the  question  being 
as  to  the  validity  of  tlie  lease  to  the  appellees  in  vesting  the  ex- 
clusive right  of  prospecting  or  operating  for  gas  and  oil.     For 
such  purposes  we  do  not  doubt  the  power  of  Mrs.  Swain  to  lease 
without  her  husband  joining."  '^     It  will  be  observed  that  the 
temis  of  the  two  leases  drawn  in  question  were  different;  and  on 
this  difference  the  eases  may  be  reconciled.     Where  husband 
and  wife  owned  lands  as  tenants  in  common,  and  the  lessee,  sup- 
posing that  the  husband  o^^^^ed  the  entire  interest  in  tliem,  took 
a  lease  of  them,  wherein  he  was  to  pay  a  certain  rent  or  complete 
certain  work  by  a  fixed  date,  or  rent  where  no  operations  were 
begim,  and  none  were  begun ;  and  after  the  demand  for  rent  the 
lessee  ascertained  that  the  wife  had  an  interest  in  the  premises, 
and  he  then  demanded  that  the  wife  should  join  in  the  lease,  to 
which  the  lessor  assented,  but  he  never  secured  his  wife's  signa- 
ture ;  and  the  wife  was  present  during  all  the  negotiations  for 
the  lease,  but  never  then  or  afterwards  made  objection ;  it  was 
held  that  the  lessee  must  pay  the  full  amount  of  the  rent.^'' 

17  Citing     Venture     Oil     Co.     v.  lo  Kunkle    v.    People's,    etc.,    Gas 

Fretts     152    Pa.    St.    451;    25    All.       Co.,   165  Pa.   St.   133;   30  All.  Rep. 
j^ep,  732.  719;    35   W.   N.   C.   465.     See    Sim- 

is  Heal    V.    Niagara    Oil    Co.,    150      mons    v.    Buckeye    Supply    Co.,    21 
Ind.  483;  50  N.  E.  Rep.  482.  Ohio  Cir.  Ct.  Rep.  455;   11  Ohio  C. 

D.  690. 


284r  OIL    AND    GAS. 

§258.     Wife  joining  husband  in  lease  —  homestead. 

A  wife  should  join  her  husband  in  a  lease  of  his  lands ;  for 
upon  his  death,  if  she  did  not  join  him  in  its  execution,  she  could 
assert  her  marital  rights,  to  the  probable  injury  of  an  existing 
lease  on  the  land.  So  if  a  lease  is  made  of  the  homestead,  she 
should  join  in  its  execution,  not  only  for  the  reason  given,  but 
for  the  reason  that  in  those  States  requiring  her  consent  to  the 
transfer  or  encumbrance  of  the  homestead  to  make  the  transfer 
or  encumbrance  valid  the  same  consent  is  required  in  granting  a 
lease  for  mining  or  oil  pur]X)6es.  Thus  a  lease  of  a  homestead 
where  such  a  statute  prevails,  granting  the  privilege  for  gas,  oil, 
and  other  minerals  at  the  lessee's  pleasiire,  and  to  erect  all 
derricks,  engine  houses,  and  buildings  necessary  in  mining,  ex- 
cavating mines,  and  piping  oil  and  gas,  is  such  an  alienation  as 
to  require  the  wife's  signature,  and  if  she  does  not  sign  it,  the 
lease  is  void.'*'  They  must  join  in  the  same  instrument,  and 
cannot  sign  separate  instruments  so  as  to  bind  the  land  or  either 
of  them."^  A  power  of  attorney  authorizing  a  sale  of  the  prem- 
ises must  be  executed  in  the  same  way."^ 

20  Frantlin  Land  Co.  v.  \Yea  Gas  donment  of  a  homestead  leased  for 
and  Coal  Co.,  4.3  Kan.  518;  23  Pac.  gas,  where  husband  and  wife  remove 
Rep.  630 ;  Palmer  Oil  and  Gas  Co.  from  it,  because  of  its  undesirabil- 
V.  Parish,  61  Kan.  311;  59  Pac.  ity  as  a  residence.  See  Palmer  Oil 
Rep.  640.     See  Pilcher  v.  Atchison,  and  Gas  Co.  v.  Parish,  supra. 

etc.,  Ry.  Co.,  38  Kan.  516;   16  Pac.  In     Texas,    where    property    was 

Rep.   945;    Evans  v.   Grand   Rapids.  held    as    community    property,    and 

etc.,   Ry.,   68   Mich.   602;    36   N.   W.  the   lessor's   husband   represented  to 

Rep.  687.  the  defendants  he  would  extend  the 

21  Ott  v.  Spragxie,  27  Kan.  620;  time,  and,  on  the  faith  of  such  rcp- 
Wallaee  v.  Travelers'  Ins.  Co..  54  resentation,  the  defendants  went  on 
Kan.  442;  38  Pac.  Rep.  489;  Gage  to  expend  moneys  and  carry  out 
V.  Wheeler,  129  111.  197;  21  N.  E.  their  part  of  the  contract,  the  les- 
Rep.  1075.  sor  was  held  boimd  by  such  waiver. 

22  Wallace  v.  Travelers'  Ins.  Co.,  Preside  Mining  Co.  v.  Bullis  (Tex.), 
supra.  4  S.  W.  Rep.  860. 

As  to  what  will  not  be  an  aban- 


CHAPTER    IX. 

TENANTS  FOR  YEARS. 

§259.     May  work  open  mines. 
§260.     When  may  open  new  mines. 

§259.     May  work  open  mines. 

Unless  restricted  by  the  terais  of  his  lease,  a  tenant  for  years 
may  work  mines  opened  at  the  time  his  lease  was  granted ;  but 
he  may  not  open  new  mines.^  And  if  an  owner  of  land  upon 
which  there  is  a  mine  opened,  make  a  general  lease  of  it,  without 
any  reference  to  the  mine,  the  lessee  has  a  right  to  work  the 
mine  for  he  has  a  lease  of  all  the  land,  and  it  is  intended  that 
his  interest  is  as  general  as  his  lease." 

§260.     When  may  open  new  mines. 

But  the  terms  of  the  lease,  though  for  years,  may  be  such  as 
to  exclude  the  right  to  mine ;  or  it  may  be  such  as  to  authorize 
the  lessee  to  open  new  mines.  Thus  a  demise  for  agricultural 
purposes  only  is  sudi  a  limitation  as  to  exclude  the  right  of  the 
lessee  to  take  out  stones  from  a  quarry  on  .the  premises,  although 
open  at  the  time  of  tlie  lease.^  And  where  the  lease  contained 
the  following  clause :  "  To  have  and  to  hold  the  above  granted 
and  demised  premises,  with  every  privilege,  right  and  appurte- 
nance whatsoever,  to  the  said  premises  belonging  or  in  any  wise 
appertaining,  whether  ways,  waters,  water  courses,  mines,  and 

1  Harlow    v.    Lake   Superior,   etc.,  ~  Owings  v.  Emery.  6  Gill.  260. 

Co.,  36  :Mich.  105;  Shaw  v.  Wallace,  3  Freer  v.  Stotenbur.  2  Keyes  467  ; 

25  N.  J.  L.  455;   Kier  v.  Peterson,  2  Abb.  Dec.  189;  reversirg  36  Barb. 

41   Pa.   St.   361;   Pennsylvania   Salt  641. 
Co.  V.  Xeel,  54  Pa.  St.  9;   Guffin  v. 
Fellows,  SlVa  Pa.  St.  114. 

285 


286  OIL    AND    GAS. 

minerals  of  whatever  description,"  it  was  held  that  he  was  en- 
titled  to  open  and  work  new  mines.  If  there  be  a  lease  of  land 
with  the  mines  in  it,"  said  the  court,  "  and  there  he  no  open 
mines,  the  lessee  may  dig  for  mines,  otherwise  the  grant  as  to 
mines  will  not  take  effect,"  *  If  the  land  he  leased  for  coal  min- 
ing purposes,  of  course  the  lessee  may  open  new  mines  and  take 
out  coal.^ 

*  Griffin  v.  Fellows,  Sly.  Pa.  St.  Qartside    v.    Outley,    58    111.    210; 

114;    contra,   Harlow   v.    Lake    Su-  Franklin  Land  Co.  v.  Wea  Gas  and 

perior,  etc.,  Co.,  supra.  Coal  Co.,  43  Kan.  518;  23  Pac.  Rep. 

eHeil  v.  Strong,  44  Pa.  St.  264;  630. 


CHAPTER  X. 


TENANCIES  FOR  LIFE.-DOWER. 

§261.  May  work  mines  or  oil  wells  already  open. 

§262.  Rule  concerning  life  tenants  applies  to  oil  leases. 

§263.  May  not  open  new  mines  or  bore  new  wells. 

•§264.  Curtesy  estate  of  husband. 

§265.  When  mines  may  be  opened  or  wells  bored. 

§266.  Mineral  lands  unfit  for  any  other  purposes  than  mining. 

§267.  Reversioner  or  remainderman  opening  wells. 

§268.  Life-tenant  must  account  for  waste. 

§269.  Title  to  mineral  or  oil  severed. 

§270.  Destruction  of  cot-pus  of  the  estate. 

§271.  Oil  or  gas  may  be  exhausted.  , 

§272.  Estoppel  of  remainderman. 

§273.  Assignment  of  dower  in  mines. 

^261.     May  work  mines  or  oil  wells  already  open. 

In  an  instance  of  ooal  ami  the  like  minerals,  a  tenant  for 
life  may  work  mine.s  already  opened,  even  to  their  exhaustion, 
carrying  on  the  mining  skillfully  so  as  not  to  injure  the  inheri- 
tance; and  he  may  even  sink  new  shafts  or  wells  to  the  vein 
already  open.  This  is  also  true  of  a  widow's  dower.  She  has 
the  right  to  work  mines  that  were  open  at  her  husband's  death, 
which  have  been  assigned  to  her.^     And  the  life  tenant  may 

iLemfer    v.    Henke,    73    111.    405;  Eq.   86;    Coates  v.   Cheever,   1   Cow. 

Priddy  v.  Griffith.   150  111.   560;   37  460;    Rutland    v.    Gie,    1    Sid.    ir2 

N.  E.  Rep.  999;  Hendrix  v.  McBeth,  1  Lev.  107;  Neel  v.  Neel,  19  Pa.  St 

61  Ind.  473;  Elias  v.  Snowdon  State  323;    Brooks  v.  Hanna,   19  Ohio  C 

Co..  1..  R.  4  App.  Cas.  454;  Moore  Ct.    Rep.    216;    10    Ohio    Dec.    480 

v.   Rollins,  45  Me.  493;   Billings  v.  Irwin    v.    Covode,    24    Pa.    St.    163 

Taylor,  10  Pick.  460;  Kier  v.  Peter-  Lynn's  Appeal,  31  Pa.  St.  44;  West 

son,  41   Pa.  St.  361;   Seager  v.  JNIc-  moreland   Co.'s   Appeal,   85   Pa.    St 

Cabe,  92  Mich.  186;  52  N.  W.  Rep.  344;  Eley's  Appeal,  103  Pa.  St.  300 

299;    Campbell   v.   Wardlow,    L.   R.  Sayers    v.    Hoskinson,    110    Pa.    St 

8  App.  Cas.  641;   Reed  v.  Reed,   16  473;    1   Atl.   Rep.   308;   Fairchild  v 

N.  J.  Eq.  248 ;  Gaines  V.  Mining  Co.,  Fairchild    (Pa.),    9   Atl.   Rep.    255 

33  N.  J.  Eq.  603,  reversing  32  N.  J.  Woodburn's  Est.,    138  Pa.   St.   606; 

287 


288  OIL    AND    GAS. 

even  penetrate  through  a  seam  already  ojjen  to  a  new  seam 
lying  nnderneath  the  one  jDenetrated.'  And  if  the  owner  of  an 
entire  estate  lease  them  for  mining  operations,  and  die,  his 
widow  is  entitled  to  the  royalty  of  a  mine  tliereafter  opened  on 
the  portion  assigned  to  her  under  such  lease,  it  being  considered 
that  the  mine  was  practically  opened  at  the  owner's  death.'  The 
life  tenant  may  work  mines  once  opened,  although  they  have  not 
been  worked  for  many  years  before  he  acquired  his  life  estate ; 
but  abandonment  of  the  mine,  for  a  day  even,  with  the  intention 
to  devote  the  land  to  other  purposes,  will  be  fatal  to  the 
tenant.*  It  is  immaterial  how  the  life  estate  has  been  created.^ 
And  if  a  life  estate  he  given  in  lands  upon  which  mines  are 
already  leased,  the  life  tenant  will  be  entitled  to  the  royalties 
accruing  under  the  le^se.® 

^'262.     Rule  concerning  life  tenant  applies  to  oil  leases. 

The  rule  concerning  the  right  of  a  life  tenant  to  open  new 
mines  or  work  old  ones  applies  to  oil  or  gas  wells  upon  the  life 
estate.  Thus  where  oil  wells  had  been  sunk,  in  the  testator's 
life,  under  a  lease,  and  one  was  being  sunk  when  he  died,  it  was 
held  that  the  life-tenant  was  entitled  to  the  royalties  under  the 
lease."  But  if  no  well  has  been  sunk  in  the  land  owner's  life 
time,  his  life-tenant  cannot  sink  an  oil  well,  nor  lease  the  land ; 

21    Atl.     Rep.     16;    Clift    v.    Clift.  6  Shoemaker's  Appeal.  106  Pa.  St. 

3  Pickle   (Tenn.)    17;   9  S.  W.  Rep.  392;  Jones  v.  Strong,  5  Kulp.  7. 

360;    Findlay   t.    Smith,    6    Mumf.  The  rule  that  the  de^asee  of  a  life 

134;   8  Am.  Dec.  733.     See  Gannon  estate   is   entitled   to   work   a    mine 

V.  Petterson.  193  111.  372;  62  X.  E.  already  opened  does  not  apply  where 

Rep.  210.  there   is   no   life   estate,   but  a   dis- 

2  Crouch  V.  Puryear.  1  Rand.  258.  tribution   of  income  in  one  propor- 

3  Priddy  v.  GrifiBth.  150  111.  560;  tion.  and  the  corpus  in  another  pro- 
37  X.  E.  Rep.  999.  portion.     In  such  a  ease  the  royalty 

4  Gaines  v.  Green  Pond  Iron  Min-  of  a  coal  lease  is  part  of  the  princi- 
ing  Co.,  33  X.  .J.  Eq.  603,  reversing  pal,  and  is  not  income.  Brooks  v. 
32  X.  J.  Eq.  86.  See  Bogot  v.  Bo-  Hanna,  19  Ohio  C.  Ct.  Rep.  216; 
got.    32    Beav.    509;    Stoughton    v.  10  Ohio  Dec.  480. 

Leisrh.    1    Taunt.    410;    Bartlett    v.  t  Woodburn's  Estate.   138  Pa.  St. 

Phillips.  4  De  G.  and  J.  414;  Viner  60fi:  21  Atl.  Rep.  16;  Koen  v.  Bart- 

V.  Vaughan.  2  Beav.  466.  lett.  41  W.  Va.  559:   23  S.  E.  Rep. 

5Neel  V.  Xeel,  19  Pa.  St.  323.  664;   31  L.  R.  A.  128. 


TENANCIES   FOE   LIFE. DOWER.  2S9 

and  if  he  do  lease  it,  he  cannot  recover  the  rent  under  the  lease.^ 
The  life-tenant  cannot  justify  his  conduct  in  boring  oil  or  gas 
wells  by  claiming  tliat  if  he  did  not  take  out  the  oil  or  gas  the 
neighboring  land  owners  will  drain  the  land ;  for  the  oil  or  gas 
belongs  to  tlie  remainderman.®  Where  the  o^vner  of  land,  after 
leasing  it  for  mining  of  oil  and  gas,  conveyed  it  to  his  children, 
reserving  to  himself  a  life  estate  in  it,  it  was  held  that  he  was 
entitled  to  the  royalties  imder  the  lease.'" 

§263.     May  not  open  new  mines  or  bore  new  wells. 

A'  life  tenant  may  not  ojien  new  mines  uix)n  the  life  estate; 
for  him  to  do  so  is  waste ;"  even  though,  as  in  ease  of  oil,  it  be 
necessan'  to  secure  it  where  adjoining  land  owners  have  opened 
wells  on  their  ovra  lands,  and  the  effect  is  to  draw  the  oil  from 
the  land  in  which  the  life  estate  exists.'"  If  a  stranger  dig  and 
carry  away  coal  from  land  in  possession  of  a  life  tenant,  upon 
which  no  mine  has  been  ojx^ned,  the  remainderman  must  bring 
the  action  to  recover  damages.'^ 

§264.     Curtesy  estate  of  husband. 

The  right  of  a  husband  to  royalties  in  his  wife's  land  by 
reason  of  the  estate  in  curtesy  he  holds,  is  the  same  as  her  dower 

8  Marshall  v.  Mellon.  179  Pa.  St.  HarTios.^.  42  W.  Va.  433;  26  S.  E. 
371;    36    Atl.    Rep.    201;    27    Pittsb.       Rep.    271. 

L.J.   (X.  S.)  214;  35  L.  R.  A.  816;  lo  Koen    v.    Bartlett.    41    W.    Va. 

67    Am.    St.    Rep.    601;    Gerkins    v.  559;    23    S.    E.    Rep.   664;    31    L.   R. 

Kentucky   Salt    Co.,    100   Ky.    734;  A.  128. 

39  S.  W.  Rep.  444;  Gerkins  v.  Ken-  n  Priddy  v.  Griffiths.  150  111.  560; 

tueky  Salt  Co.  (Ky.),  36  S.  W.  Rep.  37  X.  E.  Rep.  999;   Coates  v.  Chee- 

1;  Kenton  Gas,  etc.,  Co.  v.  Dorney,  ver,  1  Cow.  460;  Whitfield  v.  Bewit, 

17   Ohio  Cir.  Ct.  Rep.   101;    9  Oliio  2  P.  Wms.  240;  Clavcring  v.  Claver- 

C.   Dec.   694;    Findlay   v.    Smith,   6  ing.  2  P.  Wm.«.   388:   Hook  v.  Gar- 

Munf.    134;    8   Am.   Dec.   733    (salt  field  Coal  Co.,  112  la.  210:  83  N.  W. 

wells).  See  Wilson  v.  Youst,  43  W.  Rep.  963. 

Va.  826;  28  S.  E.  Rep.  781.  12  Blakeley  v.   Marshall.    174    Pa. 

9  Blakeley  v.  ^Marshall.  174  Pa.  St.  St.  425;  34  Atl.  Rep.  564;  38  W.  N. 
425;  34  Atl.  Rep.  564;  38  W.  X.  C.  74;  Marshall  v.  Mellon.  179  Pa. 
C.  74;  Williamson  v.  Jones.  43  W.  St.  371;  36  Atl.  Rep.  201;  35  L.  R. 
Va.  562;   27   S.   E.  Rep.  411;    38  L.  A.  816. 

R.   A.   694;    Childeers   v.    Xeely.   47  i3  Franklin  Coal  Co.  v.  McMillan, 

W.  Va.  70:  34  S.  E.  Rep.  828:  49  49  Md.  549.  Marshall  v.  :\rellon. 
L.  R.  A.  468.     See  also  Bettman  v.       sup)-a. 


290  OIL    AND    GAS. 

right  in  his  lands/'*  A  tenant  by  curtesy  cannot  convey  the 
right  to  a  lease  to  extract  oil  from  the  land.  Such  a  lease  or 
grant  is  void.^" 

§265.     When  mines  may  be  opened  or  wells  bored. 

There  are  circumstances  under  which  a  mine  may  be  oixined 
or  a  well  dug,  for  the  benefit  of  the  life-tenant.  These  arise 
by  reason  of  some  act  of  the  original  owner.  Thus  where  ex- 
ecutors, under  a  jwwer  conferred  by  the  will  of  their  testator, 
executed  a  coal  lease  on  the  testator's  land,  it  was  held  that  the 
royalties  received  were  income,  distributable  as  such,  and  not 
as  a  part  of  the  corjms  of  the  estate.  And  it  was  also  held  tliat 
where  the  chief  or  sole  value  of  lands  is  for  coal  mining,  and 
the  only  profit  to  be  derived  from  them  is  by  sale  or  lease  of  the 
coal,  which  the  executors  may  do,  as  they  see  fit,  the  executor 
may  claim  the  royalties  of  a  lease  they  make  as  income  of  the 
estate.^^  The  royalties,  of  course,  eventually  went  to  the  life- 
tenants.^'  Where  land  was  valuable  only  as  coal  land,  and  the 
executors  were  to  collect  and  give  all  the  income  of  the  estate 
to  the  testator's  wife,  and  were  given  power  to  sell  or  lease  the 
lands,  as  they  thought  best,  it  was  held  that  the  power  to  "  lease  " 
gave  them  power  to  lease  the  land  for  mining  purjwses,  although 
no  mine  had  ever  been  opened  on  them;  and  that  the  rental 
arising  from  such  a  lease  went  to  the  life-tenant  as  income.^* 
Where  a  testator  bequeathed  one-half  of  his  residuaiy  estate  to 
his  daughter,  and  directed  the  rest  to  be  invested  for  her  use 

14  Alderson  v.  Alderson,  46  W.  Va.  as  personal  property,  was  not  profits 

242;   33  S.  E.  Rep.  228;   Stoughton  of  the  real  estate,  and  was  not  the 

V.  Leigh,  1  Taunt.  410;  2  Inst.  299;  subject     of     curtesy.     Fairchild     v. 

Sampson  v.   Grogan,   21   R.   I.    174;  Fairchild   (Pa.)  ;  9  Atl.  Rep.  25.5. 

■42  Atl.  Rep.  712;   44  L.  R.  A.  711.  is  Barnsdall    v.    Boley,    119    Fed. 

Where- there  had  been  a  demise  of  Rep.  191. 
all    the    coal    under    the    surface   of  i*^  Reynolds    v.    Hanna,     5.")     Fed. 
a  certain  described  tract  of  land,  it  Rep.    783.     See  Rankin's   Appeal,   1 
was  held  to  be  a   sale  of  the  coal,  Mong.  308   (Pa.),  2  L.  R.  A.  429. 
and  the  amounts  due  from  the  lessee  it  Eley's  Appeal,  103  Pa.  St.  300 
to  the  lessor  as  royalties  were  not  (a  like  case)  ;  McClintock  v.  Dana, 
rents,   but   tlie    purchase   money    of  106   Pa.    St.    386;    Shoemaker's   Ap- 
ical  estate.    Such   royalty  was  held  peal,   106  Pa.  St.  392. 
to   be    collectible   by   the   legal   rep-  is  Wentz's    Appeal,     106    Pa.    St. 
resentatives   of  the   deceased   owner  301. 


TENANCIES  FOR  LIFE. DOWER.  291 

during  life,  giving  to  his  executors  power  "  to  sell  and  convert 
my  estate  into  money,  or  to  lease  my  coal  interest,"  and  to  invest 
the  proceeds  of  the  coal  lands  so  as  produce  a  permanent  revenue, 
the  income  from  which  was  to  be  paid  to  the  daughter  ;  and  after 
making  his  will  he  leased  the  land,  receiving  a  royalty  for  the 
lease,  it  was  held  as  this  royalty  was  a  part  of  the  residuary 
estate  one-half  of  it  went  to  the  daughter,  and  the  other  half 
must  be  invested  for  her  use.^"'*  So  where  'husband  and  wife 
conveyed  unopened  coal  lands  to  trustees,  with  power  to  "  con- 
trol, lease,  demise,  and  to  mine-let "  such  lands,  and  to  collect 
and  pay  over  to  the  wife  the  income  from  the  same,  with  re- 
mainder over,  it  was  held  that  at  his  death  the  trustees  could 
grant  a  lease  of  the  lands,  and  the  income  from  the  lease  was 
payable  to  tlie  wife.'*'  So  where  the  0A\mer  of  land  having  on  it 
a  salt  well  provided  by  his  will  as  follows :  "  During  the  life  of 
my  wife  it  is  my  intention  and  request  that  A,  B  and  her  do 
carry  on  my  business  in  partnership,  both  salt  works  and  mer- 
diandising,  equal  shares ;  and  that  in  consideration  of  the  use  cf 
my  capital  they  pay  out "  certain  named  legacies,  it  was  held 
that  the  life-tenants  might  sink  new  salt  wells,  even  to  the  ex- 
haustion of  the  salt  veins ;  and  that  they  had  the  right  of  wood, 
from  the  testator's  wood  land  in  an  unlimited  amount,  to  carry 
on  the  works  which  he  had  used  for  that  pui-pose  in  his  life 
time."^ 

§266.     Mineral  lands  unfit  for  any  other  purposes  than  mining. 

The  rule  tJiat  a  life-tenant  may  not  open  a  mine  and  work 
it  u|X)n  the  life  estate,  has  been  denied  in  cases  where  the  lands 
were  only  fit  for  mining  purposes.'"  And  it  has  Ix^en  held  that 
the  rule  not  permitting  a  life-tenant  to  open  new  mines  has  no 
application  to  this  country."^ 

19  Jones   V.    strong.   5   Kulp.    7.  23  Seager     v.     McCabe,     92    :Mioh. 

20  Bedford's    Appeal,    126    Pa.    St.        186;  52  N.  W.  Rep.  299;  16  L.  R.  A. 
117;   17  Atl.  Rep.  538.  247.     Tliis  was  a  statutory  life  es- 

2iFindlay  V.  Smith,  6  Munf.  134;  tate.     See    St.    Paul    Trust    Co.    v. 

8  Am.  Dec.  733.  Mintzer.   65   Minn.    124;    67   N.   W. 

22Wentz's    Appeal.    106    Pa.    St.  Rep.  657;  32  L.  R.  A.  756;  Wilkin- 

301;    Reynolds    v.    Hanna.    55    Fed.  son  v.   Wilkinson.   59  Wis.   557;    18 

Ren.  783.  X.    W.    Rep.    528;    Melms    v.    Pabst 


292  on.    AND    GAS. 

§267.     Reversioner  or  remainderman  opening  wells. 

The  right  of  possession  of  land  is  in  the  life-tenant.  The 
reversioner  or  remaindennan  has  no  right  of  ]>ossession  as  long 
as  the  life  tenancy  is  in  existence.  Tie,  therefore,  has  no  right, 
witJioiit  the  consent  of  the  life-tenant,  to  enter  on  the  premise:-, 
to  sink  oil  or  gas  AV(dls;  and  if  he  do,  without  such  consent,  th  ^ 
product  of  the  wells  will  l)elong  to  the  life-tenant,  who  may 
thereafter  \vork  them.  By  the  severance  of  the  oil  or  gas  from 
the  soil  they  become  ])rofits  arising  from  the  land ;  and  as  all 
profits  belong  to  the  lifortenant,  he  is  entitled  to  take  such  oil 
or  gas.'* 

§268.     Life-tenant  must  account  for  waste. 

Inasmuch  as  the  o|x?ning  of  mines  or  boring  of  oil  and  gas 
wells,  and  taking  their  product  by  the  life-tenant  from  the  soil 
is  a  waste,  such  tenant  nnist  account  to  the  remaindenuen,  not 
on  the  basis  of  an  annual  rental  l)ut  on  the  basis  of  rents  and 
profits.  And  if  there  be  several  of  the  remaindermen,  each  i.^ 
entitled  to  his  share.  And  if  the  tenant  for  life  is  one  of  three 
tenants  in  the  remainder,  and  he  ousts  his  co-tenants  in  such 
remainder,  claiming  the  entire  title,  he,  having  notice  of  their 
title,  is  not  entitled  to  compensation  for  improvements  he  has 
made  upon  the  land,  under  a  statute  allowing  compensation  to 
those  who  make  improvements  on  land,  under  the  belief  that 
they  have  a  good  title.  In  such  an  instance  when  the  remain- 
dermen call  for  an  accounting  they  must  allow  the  life-tenant  all 
the  costs  of  production,  Avhich  includes  the  cost  of  boring  the 
well.'^ 

Brtwing  Co.,  104  Wis.  7;  79  N.  W.  25  Williamson  v.  Jones.  43  W.  Va. 

Rep.   738,  and  Disher  v.  Disher.  45  562;  27  S.  E.  Rep.  411;  38  L.  K.  A. 

Neb.  100;  63  N.  W.  Rep.  368,  which  694.     See  Williams  v.  Bolton.   3  P. 

are  other  instances  of  statutory  life  Wms.  268;  1  Cox.  Ch.  Cas.  72;  Fos- 

estates,     but     not     cases     involving  ter   v.   Weaver,    118   Pa.    St.   42;    12 

mines.  Atl.    Rep.    313;    Ward   v.    Wnrd.    40 

24Koen    V.    Bartlett.    41    W.    Va.  W.  Va.  611;   21  S.  E.  Rep.  746;  20 

559;  23  S.  E.  Rep.  664;  31  L.  R.  A.  L.  R.  A.   449;    Effinger  v.   Hall.   81 

128.  Va.  94. 


TEXAXCIES   FOR  LIFE. DOWER,  293 

§269.     Title  to  mineral  or  oil  severed. 

If  the  lilVtenant  open  mines  or  bore  oil  or  gas  wells  without 
right,  the  mineral,  oil  or  gas  taken  out  will  belong  to  the  re- 
maindermen, the  title  thereto  being  in  him."*^  By  the  sever- 
ance they  become  personal  property ;  and  the  remaindennen  may 
j'e])levin  them  from  whomever  may  come  into  possession  of 
them.^^ 

§270.     Destruction  of  corpus  of  the  estate. 

The  life-tenant  has  no  right  to  destroy  the  corpus  of  the 
estate.  Such  is  the  case,  as  w'e  have  seen,  where  he  opens  new 
mines  or  bores  new  oil  or  gas  wells ;  and  what  he  may  not  do 
directly,  he  cannot  do  indirectly,  as  by  giving  the  right  to  others 
by  the  way  of  lease  or  otherwise.  And  if  he  give  a  lease  on 
undeveloped  territorv^  he  cannot  collect  the  rent  or  royalty ;  for 
that  belongs  to  the  reversioner  or  remaindermen.^* 

§271.     Oil  or  gas  may  be  exhausted. 

Xo  limitation  can  be  placed  upon  the  right  of  a  life-tenant 
to  use  gas  or  oil  wells,  or  mines,  already  bored  or  open ;  and  the 
same  is  true  if  he  had  the  right  to  bore  wells  or  open  mines. 
He  may  exliaust  the  oil  or  gas  in  the  entire  tract  of  land  subject 
to  the  life  estate,  or  all  the  ore  that  can  be  foimd  in  the  mine; 
and  the  reversioner  or  remainderman  cannot  complain,  although 

26  Williamson  v.  Jones,  4.3  W.  Va.  tucky  Salt  Co.,  .36  S.  W.  Rep.  1 ; 
562;  27  S.  E.  Rep.  411;  38  L.  R.  A.  Kenton  Gas,  etc.,  Co.  v.  Dorney,  17 
694.  Ohio  Cir.   Ct.  Rep.   101;    9  Ohio  C. 

27  Omaha,  etc.,  Co.  v.  Tabor,  13  Dec.  604;  Woodburn's  Est.,  138  Pa. 
Colo.  41;  21  Pac.  Rep  .925;  Hughes  St.  606;  21  Atl.  Rep.  16;  Koen  v. 
V.  United  Pipe  Lines,  119  X.  Y.  Bartlett,  41  W.  Va.  559;  23  S.  E. 
423;  23  N.  E.  Rep.  1042.  Rep.  664;  31  L.  R.  A.  128;  Blakeley 

28  Marshall  V.  Mellon.  179  Pa.  St.  v.  Marshall,  174  Pa.  St.  425;  34 
371;  27  Pittsb.  L.  J.  (N.  S.)  214;  Atl.  Rep.  564;  38  W.  N.  C.  74;  Wil- 
36  Atl.  Rep.  201;  57  Am.  St.  Rep.  liamson  v.  Jones,  43  W.  Va.  562;  27 
601;  .36  L.  R.  A.  816;  Gerkins  v.  S.  W.  Rep.  411;  38  L.  R.  A.  694; 
Kentucky  Salt  Co.,  100  Ky.  734;  39  Childers  v.  Xeely,  47  W.  Va.  70; 
S.    W.    Rep.   444;    Gerkins   v.    Ken-  34  S.  E.  Rep.  828;  49  L.  R.  A.  468. 


294  OIL    AND    GAS. 

thereby  the  land  may  be  rendered  practically  worthless.^"  Xor 
is  tlie  life-tenant  confined  to  the  exact  method  pursued  by  the 
original  grantor.  Thus  if  such  original  owner  used  the  gas  or 
oil  for  his  own  use  only,  that  does  not  prevent  the  life-tenant 
selling  the  gas  or  oil  he  pumps  out.^° 

§272,     Estoppel  of  remainderman. 

In  rare  instances  a  remainderman  may  be  estopped  in  an  at- 
tempt to  restrain  the  taking  of  ore,  gas  or  oil  from  the  land  in 
which  he  has  a  remainder.  An  instance  arose  in  Kentucky, 
where  the  life-tenant  gave  a  lease  to  bore  for  oil  and  gas  upon 
land  not  theretofore  developed.  The  lessee  under  this  lease 
drilled  a  well  at  great  expense,  with  the  knowledge  of  some  of 
the  remaindermen,  who  would  not  be  benefited  by  having  the 
well  closed.  '  It  was  held  that  the  lessee  was  entitled  to  be  com- 
pensated for  his  improvements,  that  he  might  continue  to  work 
under  the  lease,  but  must  pay  the  remaindermen  a  fair  royalty 
for  all  salt  w^ater  he  took  out  after  they  had  brought  their  action 
to  restrain  him.^^ 

§273.     Assignment  of  dower  in  mines. 

In  assigniing  dower  tliere  should  be  taken  into  consideration 
the  value  of  the  mines  so  far  as  opened  during  the  husband's 
life,  and  the  admeasures  may,  in  their  discretion  assign  the 
doAver  in  lands  by  metes  and  bounds  containing  the  mines  or 
not,  by  directing  a  separate  alternate  enjoyment  of  the  whole  for 
periods  proportioned  to  the  share  of  the  parties,  or  by  giving 
the  widow  a  part  of  the  profits.  But  there  can  be  no  account 
taken  of  the  mines  opened  since  the  death  of  the  husband  by  his 
alienee,  nor  of  the  improvements  made  therein  by  such  alienee.^' 

29Koen    V.    Bartlett,    41    W.    Va.  3i  Gerkins  v.   Kentucky   Salt   Co., 

559*';  23  S.  E.  Rep.  664;  31  L.  R.  A.  100  Ky.   734;    39   S.   W.   Rep.   444; 

128;    Shoemaker's   Appeal,    106   Pa.  Gerkins  v.  Kentucky  Salt  Co.,  36  S. 

St.   392;    Sayers   v.   Hoskinson,    110  W.  Rep.   1. 

Pa.  St.  473;   1  Atl.  Rep.  308;   Ran-  32  Coates  v.  Cheever,   1  Cow.  460. 

kin's    Appeal,    1    Mongahan     {Fa..)  See  Dicken  v.   Hamer,   1   Drew  and 

308;  2  L.  R.  A.  429.  Sm.  284;  39  L.  J.  Ch.  778;  2  L.  T. 

30Neel   V.   Neel,    19   Pa.   St.   323;  276;    Stoughton  v.  Leigh,   1   Taunt. 

Irwin    V.    Covode,    24    Pa.    St.    162;  402,  410. 
Holman's  Appeal.  24  Pa.  St.  174. 


TEXAXCIES  FOR  LIFE. DOWER.  295 

^'  It  is  not  necessary,"  says  a  standard  English  authority,  "  that 
the  widow  shoiikl  have  a  third  or  other  proportion  of  each  part 
of  the  estate ;  and  if,  therefore,  the  husband  be  possessed  of 
divers  mines,  the  sheriff  may  assign  such  a  number  of  them  as 
will  amount  to  one-third  in  value  of  the  whole ;^^  and,  in  fact, 
the  sheriff  need  not  assign  to  her  any  mines  at  all  —  scil,  be^ 
cause  the  widow's  part  may  consist  wholly  of  surface  lands  set 
out  by  metes  and  bounds ;  or  the  sheriff  may  divide  the  profits 
of  the  mines  between  the  parties,  by  directing,  for  example,  the 
alternate  enjoyment  of  the  mines,  or  by  giving  the  widow  a  part 
of  the  profits  —  especially  where  the  mines  are  in  the  hands 
of  the  other  persons."  ^*  In  a  New  Jersey  case  it  was  said : 
"'  The  only  question  that  can  arise  will  be  in  regard  to  the  mode 
of  assignment,  whether  by  metes  and  bounds  or  by  a  share  of 
the  profits.  That  course  will  be  adopted  which  will  be  most 
favorable  to  the  widow,  and  which  will  most  effectually  secure 
the  enjoyment  of  her  rights  There  can  be  no  difficulty  in  taking 
an  aecoimt  of  the  profit.  It  appears  from  the  answer  that  the 
clay  banks  have  been  worked  in  connection  with  the  farm,  thus 
the  profits  of  the  clay  may  be  ascertained  as  well  as  of  any  other 
part  of  the  property.  Working  banks  is  a  mere  mode  of  enjoy- 
ment." '' 

33  Citing  Stoughton  v.  Leigh,  su-       p.    30,    citing    Stoughton    v.    Leigh, 
pra.  supra. 

3*  Bainbridge  on  Mines  (5th  ed.),  '5  Rockwell    v.    Morgan,    2    Beas, 

(N.  J.)   Ch.  384. 


CHAPTER  XI. 

CO-TENANTS. 

§274.  One  co-tenant  may  operate  land  of  co-tenancy  for  oil  or  gas. 

§275.  Lease  or  license  granted  by  co-tenant. 

§276.  Partition  of  mines  or  mineral  lands. 

§277.  Partition  of  oil  or  gas  lands. 

§278.  Accounting  between  co-tenants. 

§279.  Accounting  when  tenant  excludes  co-tenant. 

§280.  Owner    of   surface    not   co-tenant    witli   owner    of   mineral    beneath 

surface. 

§281.  Purchase  by  tenant  of  co-tenant's  interest. 

§282.  Equity  jurisdiction  of  an  accounting. 

§283.  Expense  of  working  joint  property. 

§284.  When  a  tenant  bound  by  co-tenant's  act. 

§285.  Injunction. 

§286.  Surrender  of  lease  by  co-tenant. 

§287.  Payment  of  rent  or  royalties. 

§288.  Fidelity  relation  between  members  of  a  mining  partnership. 

§274.     One  co-tenant  may  operate  land  of  co-tenancy  for  oil  or 
gas. 

One  cotenant  of  land  has  the  right  himself  to  operate  the 
land  for  oil  or  gas  without  the  consent  of  his  co-tenant;  and 
this  includes,  of  course,  the  right  to  sink  wells  and  erect  plants 
for  that  purjxise.  His  felloAv  tenant  cannot  prevent  his  operat- 
ing the  joint  property,  by  refusing  to  join  him  in  the  enter- 
prise. This  is  true  of  coal  or  other  ore  lands  ;^  and  the  same 
is  true  of  oil  or  gas  lands." 

1  Coleman's    Appeal,    62    Pa.    St.  Grubb's    Appeal.    66    Pa.    St.    117; 

252,  affirming  1  Pearson  470 ;  Clow-  Grubb    v.    Grubb.    74    Pa.    St.    25; 

ser  V.   Joplin  Mining  Co.,   reported  Grubb's    Appeal.    90    Pa.    St.    228; 

in  note  to   Bly  v.  United   States,  4  Fulmer's  Appeal,  128  Pa.  St.  24;  18 

dTiI.  469;  Marsh  v.  Holley,  42  Conn.  Atl.  Rep.  493  ;   coHfro,  Childs  v.  Kan- 

453;  Huff  v.  McDonald,  22  Ga.  131;  sas  City,  etc.,  Co.,  117  Mo.  414;  23 

McCord  V.  Mining  Co.,  64  Cal.  134 ;  S.  W.  Rep.  373 ;  Murray  v.  Haverty, 

Watson  V.  U.  R.  and  G.  Gravel  Co.,  70  111.   318;   Hook  v.   Garfield  Coal 

50  Mo.  App:  635 ;  Kahn  V.  Old  Tele-  Co.,    112    la.    210;    83    N.    \Y.    Rep. 

graph  Mining  Co.,  2  Utah  13;  Blew-  963. 

ett  V.  Coleman,  40  Pa.  St.  45;  Cole-  2  Williamson  v.  Jones.  39  W.  Va. 

man    v.    Blewett,    43    Pa.    S..    170;  231;    19    S.   E.   Rep.   436;    25   L.   R. 

296 


CO-TEXAXTS.  297 

§275.     Lease  or  license  granted  by  co-tenant. 

One  co-tenant  may  grant  a  license  or  lease  tO'  dig  in  the  joint 
property,  but  the  right  extends  only  to  his  interest  f  and  if  he 
takes  ont  ore  he  must  account  to  the  other  oo-tenant  for  the 
value  of  his  share  of  tlie  mineral  taken  out,  less  the  expense  of 
digging  and  removing  it  from  the  mines.*  The  tenant  not  join- 
ing in  the  license  or  lease  is  not  bound  to  accept  his  share  of  the 
royalty  reserved,  but  may  insist  upon  an  accounting  by  the 
licensee  or  lessee  according  to  the  rule  just  stated.^  The  licensee 
or  lessee  of  one  tenant  cannot  be  considered  a  trespasser  as  to  the 
other  tenant;  for  he  simply  succeeds  to  tlie  right  of  possession 
in  his  licensor  or  lessor,  who  had  a  right  of  possession  equal  to 
iliaf  of  his  fellow  tenant.  Exclusion  by  the  licensee  or  lessee  of 
the  other  tenant  might  destroy  his  rights,  in  which  event  such 
licensee  or  lessee  would  not  be  required  to  account." 

§276.     Partition  of  mines  or  mineral  lands. 

In  a  case  of  an  attempted  partition  of  a  mine,  Justice  Brewer 
used  the  following  language:  "  The  mere  fact  of  joint  o^vner- 
ship  in  a  mine  does  not  give  an  equitable  right  to  a  partition. 
Seldom  can  a  division  of  a  mine  be  made.  Generally  partition 
must  result  in  a  sale.  To  such  property  there  is  an  unknown 
value ;  and  a  chancellor  may  well  require  full  information  as  to 
all  the  relations  of  the  parties  to  the  property  before  decreeing 
any  partition  which  will  practically  result  in  dispossessing  one 

A.  222;   Enterprise,  etc..  Co.  v.  Na-  2.5  X.  W.  Rep.  713;   .Job  v.  Potton, 

tional  Transit  Co.,  172  Pa.  St.  421;  supra;    Gregg   v.    Roaring   Springs, 

33    Atl.    Rep.    687;    Harrington    v.  etc.,  Co.    (Mo.),  70  S.  W.  Rep.  920. 

Florence  Oil   Co..   178   Pa.   St.   444;  s  Job  v.  Potton,  supra. 

35  Atl.  Rep.  855 ;  Williams  v.  South  c  Denys  v.  Shuckburgh,  4  Y.   and 

Penn.  Oil  Co.,  52  W.  Va.  — ;  43  S.  C.  Exch.  42;  5  Jur.  21. 

n.  Rep.  214.  A   statute   may,   however,   give   a 

3  Omaha,  etc.,  Co.  v.  Tabor,  13  tenant  a  right  of  action  against  his 
Colo.  41;  21  Pac.  Rep.  925;  5  L.  R.  fellow  tenant  for  mining  ore  with- 
A.  236;  Tipping  v.  Robbins.  71  Wis.  out  his  consent.  Murray  v.  Haver- 
507;  37  N.  W.  Rep.  427;  Job  v.  Pot-  ty,  70  111.  318.  See  Childs  v.  Kan- 
ton,  L.  R.  20  Eq.  84;  44  L.  .7.  Ch.  sas  City,  etc.,  Co.,  117  Mo.  414; 
262;  23  W.  R.  588;  32  L.  T.  110.  23  S.  W.  Rep.  373. 

■*  Tipping  v.  Robbins,  64  Wis.  546 ; 


298  on.    AND    GAS. 

of  the  parties  entirely."  ^  And  in  a  dictum  in  an  Illinois  ease 
it  was  said :  ''  The  mines,  when  opened,  in  their  nature  were 
indivisible.  Xeither  partition  could  be-madoat  law,  nor  dower 
assigned  by  metes  and  Ixmiuls,  The  only  partition  that  can  be 
made  is  to  order  a  sale  of  the  mines  and  divide  the  proceeds."  "* 
These  were  instances  where  the  mines  had  been  opened.  Where 
the  mine  has  not  been  opened,  the  right  to  partition  of  land 
having  upon  it  solid  niincrjils  has  been  recognized;"  and  it  will 
be  decreed  unless  the  mineral  is  so  situated  that  a  probably  fair 
division  of  it  cannot  be  made  by  dividing  the  surface  of  the 
land."  All  things  being  ecpial,  as  between  a  partition  and  a 
sale,  a  partition  will  bo  decreed.^ ^  By  agreement  not  to  apply 
for  a  partition,  the  owners  may  bar  their  right  to  it.^"  The  in- 
terest of  the  several  owners  of  a  mine  may  be  such,  however, 
as  to  prohibit  a  ]»artition,  in  which  event  a  sale  is  the  only  relief. 
Thus  in  an  Illinois  case  it  was  said:  ''  If  these  twO'  sepai-ato 
interests  and  titles  were  united  in  one  person  .  .  .  the 
owner  would  have  the  right  to  sever  the  two  estates  by  deed  ov 
devise.  Where  the  owner  would  have  that  right  there  is  no  in- 
herent difficulty  in  a  co\irt  of  chancery  severing  the  two  estates 
in  a  partition  proceeding,  where  it  is  rendered  necessary  in 
the  interest  of  justice,  and  decreeing  the  dominant  estate  to  one 
and  the  servient  estate  to  another.  In  recog-ni zing  this  ]U'inciple 
we  are  applying  it  to  the  facts  of  the  particular  case  before  us, 
•where  the  defendants  in  citot  consented  to  accept  the  servient 
estate.  We  do  not  at  this  time  determine  the  question  whether 
a  person  not  conversant  with  the  management  of  the  mine  could 
be  compelled  to  accept  as  his  share  a  mine  thus  set  off  to  him 
against  his  consent,  or  whether  a  mine  could  be  set  off  to  a 
minor."  ^"  Thus  where  the  owner  in  fee  simple  of  certain  hinds 
granted  an  interest  in  them,  in  the  following  language:      ""  An 

"Aspen  Miniiifj,  etc.,  Co.  v.  Riu-k-  1   Aiken  07;    Kenil)le  v.   Keitthle.   44 

er,  28   Fed.   Rep.   220.  N.  J.   Eq.  454;    11  Atl.  llep.   733. 

sLenifeis  v.  Heiike,  73  111.  405.  u  Boyston  v.   Miller,   sirprd. 

oHuffhes  V.   Devlin.   23   Cat   501;  12  Ames  v.  Ames,  160  111.  590;  43 

Raiiiey  v.   Friok   Coke   Co.,    73   Fed.  X.    R.    Rep.    502;    contra,   Haeussler 

Rep.  380.  V.  Missouri  Iron  Co..   110  Mo.   188; 

If  Wilson  V.  Bogle.  95  Tenn.  290;  10  (s.  W.  Rep.  75;  16  L.  R.  A.  220. 
32  S.  W.  Rep.  386;  Conant  v.  Smith,  is  Ames  v.  Ames.  >iupra. 


CO-TENANTS. 


29i) 


undivided  third  interest  in  a  certain  piece  of  mining  gTOund," 
describing  it,  ''  togetlier  with  the  water-rights,  reservoirs,  and 
tale-raoe  belonging  to  the  same,  and  it  is  expressly  conditioned 
that  this  instrument  conveys  no  other  right  except  a  mining 
right  on  the  premises  above  to  the  said  party  of  the  second  part, 
his  heirs  and  assig-ns,"  it  was  held  that  there  could  be  no  parti- 
tion as  between  the  grantor  and  grantee.     "  The  grant,"  said  the 
court,  "  does  pot  convey  the  exclusive  dominion  of  any  portion 
of  the  ground  so  as  to  make  the  grantee  a  joint  tenant  or  in  com- 
mon wdtli  tlie  gi-antor.     It  conveys  only  a  particular  estate  or 
incorporeal  hereditament  in  hind  of  which  the  grantor  held  the 
general  estate."  "     Thus  water  rights  Ix^longing  to  a  mining 
claim  cannot  be  partitioned.'^     "  Supposing  that  there  may  be 
a  right  and  estate  in  a  mine,"  said  the  Supreme  Court  of  Massa- 
chusetts, "  distinct  from  that  of  the  soil  in  which  it  lies;  there 
seems  to  he  a  peculiar  fitness  in  resorting  to  equity  to  adjust 
and  regulate  tlie  mutual  rights  of  the  parties.     It  is  manifest 
that  partition  cannot  be  made  by  setting  off  the  surface  by 
metes  and  bounds,  because  the  quantity  and  value  of  the  mines 
and  ores,  and  the  capacity  and  facility  of  access  for  working 
them,  bear  no  proportion  to  the  area  of  the  surface  imder  which 
they  lie.     Indeed,  in  making  partition  at  law,  it  has  been  found 
necessary  to  make  special  partition,  directing  the  division  of  the 
profits,  or  tlie  alteniate  enjoyment  of  the  common  property,  as 
■  circumstances  may  require.' 


??    16 


§277.     Partition  of  oil  or  gas  lands. 

Discussion  at  length  of  partition  of  mines  and  mineral  lands 
has  been  made  in  order  to  throw  some  light  upon  the  right  of 

1*  Smith  V.  Cooley.  65  Cal.  46;  2  laying  or  being  in  or  upon"  a  oer- 

Pac.   Rep.   880.  tain    described    tract   of    land.    "  to- 

15  McGillivray   v.   Evans,   27   Cal.  gether  with  the  right  to  raise,  work 
92  and  carry  away  the  same,  the  right 

16  Adams    v.    Briggs    Iron    Co.,    7  to  put  all  buildings  and  to  use  all 
Cush.    361;    Boston    Franklin,    etc.,  lands    necessary    for    that    purpose. 

■Co.  V.  Conditt.  19  N.  J.  Eq.  394.  and  the  right  of  ingress  and  egress 

In  Canfield  v.  Ford.  28  Barb.  336.  for    that    purpose."    words    of    in- 

a    conveyance    to    one    of    "  all    the  heritance  being  added,  was  held  to 

mines,    ores,    minerals    and    metals  n,ns=    a    corporeal    hereditament,    an 


300  OIL    AND    GAS. 

partition  of  oil  or  gas  lands.  There  is  no  doubt  tliat  an  action 
of  partition  lies  to  divide  undeveloped  and  supposable  oil  or 
gas  lands,  jnst  as  it  does  in  case  of  lands  containing  solid  min- 
erals ;  for  it  cannot  be  known,  owing  to  the  peculiar  ciiaracter 
of  gas  or  oil  as  a  mineral  whetlier  the  land  to  be  divided  is  actual 
gas  or  oil  lands ;  and  to  refuse  partition  on  the  theory  that  it 
may  be,  would  be  for  the  court  to  enter  upju  the  domain  of 
mere  si>eculation  or  supposability.  But  after  gas  or  oil  has  been 
discovered  on  the  land,  an  entirely  different  question  is  pre- 
sented. If  the  entire  tract  has  been  developed,  and  the  wells 
are  so  distributed,  and  their  production  is  well  kno\\ni  so  that 
their  resjTective  values  can  be  detennined,  then  a  division  might 
possibly  be  decreed ;  but  it  would  be  almost  impossible  to  find 
an  instance  of  this  kind.  And  then,  too,  other  powerful  wells, 
in  spite  of  the  supposition  that  the  land  had  been  fully  devel- 
oped, might  l>e  sunk  upon  one  part  of  the  divided  tract  and  all 
attempts  to  find  other  productive  wells  on  the  other  tract  might 
be  failures.  In  such  an  event  the  ]xirtiti(in  proceedings  would 
result  in  an  unequal  division  in  value,  a  thing  studiously 
avoided  in  partition  proceedings.  The  nearest  approach  to 
the  question  is  one  relating  to  a  partition  of  water  rights  con- 
nected with  a  mining  claim,  which  cannot  be  done ;  ^^  or  of  a 
running  stream  of  water  flowing  through  the  joint  property,  or 
of  streams,  under  ground.^^  Es]Decially  can  there  be  no  parti- 
tion of  the  right  to  take  oil  or  gas  from  beneath  a  tract  of  land, 
the  surface  being  owned  by  a  third  person ;  and  an  attempt  of 
the  court  to  make  partition  of  such  a  right  is  void.^^ 

§278.     Accounting  between  co-tenants. 

If  one  tenant  work  a  mine,  he  must  account  to  his  co-tenant ; 
and  if  he  lease  tlie  premises,  his  co-tenant  may  exact  his  share 

estate  of  inheritance,  for  a  part  of  i9  Hall  v.  Vernon,  47  W.  Va.  295 ; 

which  an  action  of  partition  would  34  S.  E.  Rep.  764;  49  L.  R.  A.  464; 

lie.  Christy's   Appeal,   110  Pa.   St.    538; 

17  McGillivray  v.   Evans,    27    Cal.  5    Atl.    Rep.    205     (coal);    9    Morr. 
92.  Min.  Rep.  42. 

18  Willis  V.  Perry,  92  la.  297 ;  60  • 
N.  W.  Ren.  727 :  26  L.  R.  A.  124. 


CO-TEXAXTS.  301 

of  tlie  rent  or  royalty,"**  or  he  may  resort  to  the  lessee  and  re- 
quire him  to  pay  the  value  of  his  share  of  ore  taken  out  the 
same  as  he  could  do  if  his  fellow-tenant  had  taken  out  the  ore 
instead  of  leasing  the  right  to  do  so."^  If  the  one  tenant  work 
the  mine  he  must  account  to  his  co-tenant  for  his  just  share  of 
the  proceeds.  In  case  of  a  gold  mine  where  one  tenant  took 
more  than  his  share  of  the  proceeds  it  was  said  he  must  account 
to  his  co-tenant  for  the  surplus  and  for  all  the  profits  made 
out  of  such,  surplus ;  and  if  there  be  no  proof  that  he  used  such 
surplus,  and  no  proof  as  to  whether  he  made  any  profits  out  of 
it,  the  law  will  raise  a  presumption  that  he  did  make  a  profit 
out  of  it,  and  that  the  profits  were  equal  to  the  legal  rate  of 
interest  on  the  value  of  such  surplus.""  If  there  he  no  dispute 
as  to  the  amount  mined,  and  the  only  question  is  the  proportion 
of  that  amount  the  co-tenant  is  entitled  to  receive,  assumpsit 
lies  to  detennine  that  question."^  Where  the  cotenants  were 
lessees  of  the  mine  from  different  o^^^lers  of  undivided  portions 
of  certain  ore  beds,  it  was  held  not  to  be  a  good  defense  on 
that  part  of  the  defendant  tenant  that  he  had  accounted  to  his 
landlord  for  all  he  had  taken  out ;  for  if  he  account  for 
more  tlian  his  proportion,  he  did  so  at  his  jjeril."*  In  a  case 
where  the  fellow  tenant  had  worked  a  coal  mine,  it  was  held 
that  his  co-tenant  was  entitled  to  recover  the  value  at  the  pit's 
mouth  of  his  share  of  the  coal  raised,  less  all  costs  of  getting 
and  raising  it.^^  This  might  be  termed  the  net  profits;  and 
this    amount  is   reasonable."''     This   rule   is   applicable    to   the 

20  Job  V.  Potion,  L.  R.  20  Eq.  84 ;  Cal.  134;  Barnum  v.  Landon,  25 
44  L.  J.  Ch.  262;  23  W.  R.  588;  32  Conn.  137;  Harrington  v.  Florence 
L.  T.  110;  Denys  v.  Shuckburgh,  4  Oil  Co.,  178  Pa.  St.  444;  35  All. 
Y.  and  C.  Exch.  42;  5  Jur.  21;  En-  Rej).  855. 

terprise  Oil  and  Gas  Co.  v.  National  23  Winton    Coal    Co.    v.    Pancoast 

Transit    Co..    172    Pa.    St.    421;    33  Coal   Co.,   170  Pa.  St.  437;    33  Atl. 

Atl.  Rep.  687.  Rep.  110. 

21  Mercur  v.  State  Lime,  etc.,  Co.,  24  Barnmn  v.  Landon,  25  Conn. 
171  Pa.  St.  12;   32  Atl.  Rep.   1126.  137. 

22  Huff  V.  McDonald,  22  Ga.  131 ;  25  Job  v.  Potton,  supra. 
Coleman's  Appeal.  62  Pa.  St.  252 ;  2c  Enterprise  Oil  &  Gas  Co.  v.  Na- 
Grubb  V.  Griibb,  101  Pa.  St.  11;  lional  Transit  Co.,  172  Pa.  St.  421; 
Fulmer's  Appeal.  128  Pa.  St.  24;  33  Atl.  Rep.  687;  Williamson  v. 
18  Atl.  Rep.  403;  Gollcr  v.  Fett.  30  Jones,  39  W.  Va.  231;  19  S.  E.  Rep. 
Cal.  481;  McCord  v.  Mining  Co.,  64  436;   38  L.  R.  A.  694. 


o02  OIL    AND    GAS. 

production  of  gas  and  oil.  In  a  Pennsylvania  case,  in  speak- 
ing with  reference  to  a  coal  mine  operated  by  one  of  the  co- 
tenants,  the  Supreme  Court  said : 

"  It  is  urged,  however,  that  before  any  liability  to  account 
can  arise,  it  must  appear  tliat  the  co-tenant  ujx)n  whom  the  de- 
mand for  an  account  is  made  has  actually  taken  out  more  than 
his  just  share  or  proportion  of  the  entire  mass  of  ore  in  the 
beds  or  banks.  It  might  be  enough  to  say  that  the  Act  of 
Asse«ibly  makes  no  such  provision.  It  applies  to  any  case, 
where  coal,  iron  ore,  or  other  mineral  has  been  or  shall  be 
taken  from  the  common  proj^erty.  It  does  not  say  or  imply 
more  than  a  just  hsare  or  proportion.  The  remedy  would  be 
illusory  if  such  a  construction  should  prevail,  ^o  one  can  tell 
what  the  just  share  or  pro}X)rtion  of  each  tenant  will  l^e  until 
the  whole  mine  or  bank  is  exhausted  of  its  entire  deposit.  In 
such  a  mass  —  practically  inexhaustible  for  generations  to  come 
■ —  it  would  make  the  one  ninety-sixth  part  equal  to  the  other 
ninety-five,  and  really  destroy  to  that  extent  their  proportionate 
Value.  Here  a  tenant  in  common  exercises  his  undoubted  right 
to  take  common  property,  and  he  has  no  other  means  of  obtain- 
ing his  own  just  share  than  by  taking  at  the  same  time  the 
shares  of  his  companions.  The  value  of  the  ore  in  place  is 
therefore  the  only  just  basis  of  account.  This  is  the  same  as 
the  value  of  what  is  called  ore  leave  —  that  is,  what  the  right 
to  dig  and  take  the  ore  is  worth.  Indeed  all  parties,  as  well 
as  the  master  and  court  below,  seem  eventually  to  have  settled 
upon  this  basis.  But  how  is  the  value  of  ore  leave  to  be  ascer- 
tained ?  It  is  evident  in  the  nature  of  things  that  it  can  have 
no  general  market  price.  It  will  depend  necessarily  upon  the 
jwsition  and  circumstances  of  each  particular  mine,  as  well  as 
On  the  character  of  the  ore.  Tbe  value  of  it  at  the  pit's  mouth 
ilepends  upon  its  quality  and  its  proximity  to  the  furnace 
where  it  is  to  be  used,  and  on  the  means  of  transportation.  In 
addition  to  this,  the  price  of  ore  leave  will  be  influenced  by 
the  expense  and  risk  of  process  of  mining  or  taking  it  from  its 
place  to  the  pit's  mouth.  It  is  evident  that  the  price  given  for 
ore  leave  in  other  mines  or  beds  can  afford  no  safe  criterion, 
nnless  they  should  b:^   pre^is^ly  similar  in   all  respects  to  the 


308 

CO-TENANTS. 


one  i„  question.     As  to  the  Cornwall  ore  banks    no  sale  had 
ever  been  made  of  ore  leave.     Ko  evidence  was  laid  before  the 
,„as,er  as  to  what,  in  the  opinion  of  the  ^I-;^'"-  '^^  ^^ 
these  banks  would  have  commanded  tn  tho  market.     The  mas 
ter  arrived  at  it  by  ascertaining  the  market  value  of  the  ore  at 
the  pit's  mouth,  and  then  deducting  from  that  the  cost  of  mm- 
in.      We  cannot  see,  under  all   the  circumstances,  that  any 
,„;re  just  and  equitable  mode  eonld  have  been  adopted.     We 
do  not  mean  to  say  that  it  would  hold  in  any  other  case  than 
,he  one  now  before  the  conrt  -  certainly  not  where  the  mmmg 
is  expensive  and  hazar.lous.     Where  the  tenant  in  common  of  a 
coal  mine,  for  example,  tnust  with  gi-eat  oirtlay  of  capital  con^ 
struct  ex,«nsive  machinery,  and  incur  all  the  r.sks  of  such    n 
undertakin-".  the  value  of  ore  leave  or  coal  .n  place  could  not  b<, 
ascertained  by  so  simple  a  calculation.     The  usual  prohts  en,- 
barked  in  such  a  hazardous  enterprise,  with  the  proper  allow- 
ance for  personal  skill  and  attendance,  would  seen,  to  he  more 
,l,an  fair  and  reasonable  deductionc.     Certainly  any  busmess 
vnan,  sitting  dowm  to  calculate  what  he  ought  to  give  for  ore 
leave  would  take  all  these  element.s  info  considerat.on.     Other- 
wise, with  his  own  capital  and  at  his  own  risk,  he  would  sepa- 
rate the  ore  fv„n,  its  natural  |X,sition  and  place  .t  on  the  sur- 
face enhanced  in  value  for  the  benefit  of  a  stranger.     We  kave 
the  rule  in  such  a  case  to  be  determined  when  it  arises. 

Where  a  fellow  tenant  has  made  an  express  promise  of  a  cer- 
tain sum  as  his  co-tenanfs  share  of  operating  gas  or  oil  terr^ 
tory,  assnn„>sit  by  the  latter  will  lie  against  the  fonner;  but  ,t 
no  such  prondse  has  teen  made,  then  the  only  remedy  is  by 
account  for  a  share  of  the  profits.  Under  no  circumstances  m 
sldia  case  is  the  co-tenant  entitled  to  a  share  of  the  product 
taken  out  of  the  ground.  Thus  where  all  but  one  of  several  co- 
tenants  of  an  oil  lease  assismed  the  entire  lease  for  a  share  of  the 
oil  produced,  to  be  delivered  to  a  pi)*  line  conniany  to  the  credit 

:Vi!'a.-,;oJ;.."i;7SA..Dee.      CO..  47  W.  Va.  .07;   34  S.  E.  B-p. 
(UO:    Graham    v.   Pierce,    19    Gratt.       933. 


304  OIL    AND    GAS. 

of  those  assigning;  and  one  of  the  jnint  owniers  of  the  lease,  who 
did  not  join  in  the  assignment,  notified  tlie  pipe  line  company 
not  to  deliver  or  pay  for  any  of  the  oil  so  received  by  it  to  the 
assignors,  it  was  held  that  tlie  assigTiors  were  entitled  to  all  the 
oil  delivered  t^)  the  pipe  line  company,  and  that  the  remaining 
joint  owner  conld  claim  no  part  nf  it."''  Three  jiersons  were 
joint  owners  of  a  lease.  Two  of  them  agreed  that  one  of  the 
two  should  work  the  oil  M^ell  on  it  in  ])lace  of  a  former  employee 
employed  by  the  o^vner  of  the  third  })art.  The  owner  of  the 
third  part  did  not  assent  to  the  arrangement,  but  received  his 
share  of  the  product.  It  was  held  that  the  latter  was  not  liable 
to  the  part  owner  working  the  oil  well  for  his  share  of  the  ex- 
pense; but  it  was  said  that  he  might  be  liable  to  his  co-tenants 
for  the  necessary  ex])ense  and  care  of  the  oil  produced,  but  not 
to  the  part  owner  working  the  well,  because  he  had  not  employed 
him.^**  Xor  can  a  joint  tenant  recover  from  his  cotenants  the 
expense  of  pum])ing  an  oil  well  juimped  against  their  consent, 
even  though  a  statute  gives  a  right  of  action  by  assumpsit 
against  ''  any  joint  owner,  joint  tenant  or  tenant  in  common, 
holding  an  interest  in  and  operating  "  an  oil  well  for  his  share, 
unless  a  contract,  either  express  or  implied,  l>e  shown  as  the 
basis  of  the  claim.^"  Where  the  lease  is  worked  under  an  agree- 
ment, each  owner  must  bear  the  loss  of  working  it  in  proportion 
to  their  interests.^^  In  a  case  where  a  co-tenant  had  expended 
a  large  sum  of  money  in  working  an  oil  lease,  the  court  said : 
"  I  should  think  that  a  co-o^vner  who  has  ex|>ended  so  large  a 
sum,  entirely  at  his  own  risk,  but  with  the  knowledge  of  the 
other  co-owners,  in  so  hazardous  enterprise  aS'  developing  oil 
in  an  unexplored  field,  ought  not  to  do  more  than  account  for 
their  proportion  of  a  customary  royalty,  proper  and  fair  under 
ilje  circumstances."  ^" 

2«  B^iterpiise    Oil     &    Gas   Co.   v.  29  Thompson  v.  Newton    (Pa.);    7 

National    Transit   Co.,    172   Pa.    St.  Atl.  Rep.  64. 

421;   33  Atl.  Rep.  687;  Johnston  v.  so  Murtland  v.  Callihan,  2  Super. 

Price,  172  Pa.  St.  427;  33  Atl.  Rep.  Ct.    (Pa.)    340;    Johnston  v.    Price, 

688;  37  W.  N.  C.  387;   26  Pitts.  L.  supra. 

J.    (N.   S.)    357   Murtland  v.   Calli-  :^i  Harrington  v.  Florence  Oil  Co., 

han,  2  Super.   Ct.    (Pa.)    340.  178  Pa.   St.  444;   35  Atl.  Rep,  855. 

32  Williamson  v.  Jones,  supra. 


CO-TEXAXTS.  305 

§279.     Accounting  when  tenant  excludes  co-tenant. 

\\^e.re  one  tenant  excludes  liis  co-tenant  under  a  claim  of 
ownership  of  the  entire  tract,  and  then  works  the  tract  for  the 
oil  or  gas  that  is  in  it,  he  must  account  to  his  co-tenant  for  his 
share  of  the  product  taken  out,  and  will  not  be  allowed  to  de- 
duct therefrom  any  part  of  the  expenses  necessarily  incurred  in 
operating  the  wells  on  the  traet.^^  In  this  case  the  defendant 
purdiased  of  his  oo-tenant,  by  fraudulent  representations,  his 
interest  in  an  oil  lease ;  and  upon  demand  for  a  reconveyance, 
the  former  offered  to  do  so  if  the  latter  would  pay  his  share  of 
all  tlie  oi>erating  expenses  incurred  after  the  conveyance  was 
made.  This  offer  was  refused  ;  and  in  an  acticm  to  recover  his 
full  share  of  the  entire  product  it  was  held  that  no  cost  of  se- 
curing it  should  be  deducted.  "  Is  the  wrong-doer,"  asked  the 
court,  "  entitled  in  such  a  suit  to  recoup  from  the  value  of  a 
mineral  as  a  chattel,  the  expense  of  mining  or  producing  it  ? 
The  mere  statement  of  the  proposition  in  this  form  suggests 
the  only  answer  that  can  be  given,  unless  it  is  the  policy  of  the 
law  to  make  the  way  of  the  transgressor  easy  and  secure.  The 
relation  of  the  parties  to  each  other,  as  co-tenants  of  the  lease, 
and  the  fact  that  two  of  them,  after  fraudulently  dispossessing 
the  other,  may  have  continued  to  use  the  property  as  it  would 
probably  have  been  used  if  they  had  all  remained  in  possession, 
does  not  mitigate  the  tort  nor  qualify  the  ordinary  rule  of  dam- 
ages. Co-tenants  are  bound  to  respect  the  rights  of  each  other 
quite  as  mudi  as  if  they  were  strangers  in  title."  This  rule 
was  applied  where  a  life  tenant,  who  was  also  a  co-tenant  in  com- 
mon, bored  wells  on  the  land^  claiming  it  as  his  own.  It  was 
considered  that  he  was  a  trespasser,  and  should  not  be  allowed 
anything  for  the  cost  of  production."* 

33  Foster  v.  Weaver.  118  Pa.  St.  694.  See  also  Omaha,  etc.,  Co.  v. 
4-2 ;   12  Atl.  Rep.  313.  Tabor    13    Colo.    41;    21    Pac.     Rep. 

34  Williamson  v.  Jones,  43  W.  Va.  925;  5  L.  R.  A.  236. 
562;  27  S.  E.  Rep.  411;  38  L.  R.  A. 


306  OIL    AND    GAS. 

§280.     Owner  of  surface  not  co-tenant  with  owner  of  mineral 
beneath  surface. 

If  one  person  OAvn  the  surface  and  another  the  minerals 
beneath  it,  there  is  no  cotenancy  existing  between  them.  There- 
fore, there  is  not  that  relation  between  them  that  forbids  one  of 
them  purchasing  an  outstanding  title  relating  to  the  other's  in- 
terest, and  holding  it  adversely  to  him."^  Thus  where  the 
owner  of  land  conveyed  it  to  his  grantee,  but  reseiwed  all  the 
minerals  beneath  the  surface,  it  was  held  that  he  could  purchase 
the  title  of  his  grantee  at  a  tax  sale,  and  in  that  way  acquire  the 
title  to  the  entire  land.''® 

§281.     Purchase  by  tenant  of  co-tenant's  interest. 

In  the  purchase  of  his  co-tenant's  interest,  a  tenant  is  not 
bound  to  reveal  to  him  the  value  of  the  interest  he  is  purchas- 
ing, nor  the  fact  that  valuable  minerals,  (U'  oil  or  g"as  exist  upon 
the  land  they  jointly  own.  There  is  no  such  relationship  be- 
tween them  as  requires  him  to  disclose  such  facts.  They  deal 
with  each  other  at  arm's  length. ^^ 

§282.     Equity  jurisdiction  of  an  accounting. 

Under  a  contract  specifying  their  iiidividunl  interest  in  a 
lease  held  and  the  business  of  o|>erating  it  by  tenants  as  co-part- 
ners in  pumping  and  selling  the  oil  produced  from  a  well 
thereon,  a  bill  for  an  accounting  is  the  exclusive  remedy  for  the 
settlement  of  their  accounts.'"'  So  equity  has  jurisdiction  of 
suit  for  an  accounting  by  the  owners  of  an  interest  in  an  oil 
lease  against  the  owner  of  the  remaining  part,  although  each 
party  ran  their  own  share  of  oil  to  their  own  credit  and  sold  it, 

"^Virginia  Co;il    Co.  v.  Kelley,  93  from  the  vendor  on  his  interest  diJ 

Va.  332;   24  S.   E.  Rep.  1020.  not   alter   their   relations,   so   as    to 

3G  Hutchinson    v.    Kline,    109    Pa.  require  a  disclosure  of  the  value  <  f 

St.  564;   49  Atl.  Rep.  312.  the  interest  purchased. 

:i-Neill  v.  Shamburg.  158  Pa.   St.  ss  Johnston   v.    Price,   172   Pa.   St. 

263;  27  Atl.  Rep.  992.     In  this  case  427:    37   W.   N.   C.   387;    26   Pittsb. 

it  was  further  held  that  the  fact  L.  J.  (N.  S.)  357;  33  Atl.  Rep.  688, 
that  the   piuclinsoi-   liad   a    mortgage 


CO-TENANTS.  307 

-w^here  the  latter  kept  account  of  all  expense  of  operating  the 
leasehold,  under  a  statute  giving  courts  jurisdiction  in  all 
<;ases  where  an  action  of  "  account  rendered  "  would  lie.^®  So 
equity  has  jurisdiction  of  a  bill  of  discovery  to  ascertain  the 
rights  and  relations  of  all  the  parties  to  an  oil  lease,  and  sub- 
lease thereunder,  and  for  an  accounting  for  the  profits  from  the 
sale  of  gas/*^ 

§283.     Expense  of  working  joint  property. 

One  tenant  is  not  compelled  to  contribute  to  the  working  of 
_gas  or  oil  land  *^  unless  he  agree  to  do  so ;  altliough  a  refusal 
to  do  so  will  not  deprive  him  of  a  right  to  demand  an  account- 
ing, as  we  have  seen,  elsewhere,  for  the  oil  or  gas  taken  out.*" 
To  permit  one  tenant,  against  the  desires  of  his  co-tenant,  to 
engage  in  the  operation  of  oil  or  gas  lands  ;  and  charge  him  with 
a  share  of  tlie  operating  expenses,  might  bring  the  latter  to 
bankruptcy,  or  compel  him  to  dis]X)se  of  his  land  at  a,  great 
sacrifice.  And  where  a  statute  provided  that  any  one  perform- 
ing labor  in  pumping  an  oil  well  might  recover  from  any  tenant 
in  common  of  the  premises,  not,  however,  requiring  the  latter 
to  pay  any  share  of  the  expenses  of  operation  commenced  and 
carried  on  without  his  authority  and  consent,  it  was  held  that 
a  tenant  in  common  was  not  liable  to  pay  for  labor  performed 
in  pumping  an  oil  well,  where  he  offered  to  furnish  a  capable, 
and  competent  person  to  do  the  work ;  and  his  co-tenant  refused 
ijo  accept  the  seiwices  of  such  person  or  permit  him  to  do  the 
•work." 


39  Harrington  v.  Florence  Oil  Co.,  Atl.  Rep.  64.     As  has  been  said,  i-he 
178  Pa.  St.  444;    35  Atl.  Rep.  8.55.  amount    allowed   on   an   accounting, 

40  Akin   V.   Marshall   Oil   Co.,   188  where  no  other  question  is  involved. 
Pa.  St.  614;  41  Atl.  Rep.  748.  is  generally  the  usual  royalty.  Will- 

41  Taylor  v.  Fried,  161  Pa.  St.  53;  iamson  v.  Jones,  43  W.  Va.  562;  27 
28   Atl.   Rep.   993;    Baker   v.    Bren-  S.  E.  Rep.  411;  38  L.  R.  A.  694 
nan,  12  Ohio  c'.  D.  211;  22  Ohio  C.  43  Murtland     v.    Callahan,    2     Pa. 
C.  Dec.  241.  Sup.  Ct.   340. 

42  Thorrpson  v.   Newton    (Pa.),   7 


308  OIL    AND    GAS. 

§284.     When  a  tenant  bound  by  co-tenant's  act. 

As  a  rule  a  tenant  is  not  bound  by  his  co-tenant's  act  concern- 
ing the  joint  premises.  But  there  may  be  instances  in  wliich 
he  will  be,  aside  from  the  question  of  partnership.  Thus  if  it 
1)0  necessary  that  certain  work  be  done  for  the  preservation  of 
the  joint  premises,  and  his  co-tenant  do  it  or  have  it  done, 
the  other  tenant  will  be  liable  for  his  proportionate  share  of 
the  expenses,  which  is  a  lien  on  his  interest.**  So  if  one  ten- 
ant have  a  valid  Vwu  on  the  joint  estate,  the  other  must  contribute 
a  share  pro]X)rtionate  to  his  interest.*^  So  if  one  of  several 
joint  lessees,  with  intent  to  surrender  the  lease  as  to  all,  and 
with  the  knowledge  of  his  co-tenants,  surrender  the  lease  his 
co-tenants  will  he  bound  by  his  act.*"  So  one  of  several  joint 
lessors  may  accept  a  surrender  of  their  lease  so  as  to  relieve 
the  lessee  from  the  payment  of  the  rent.*^ 

§285.     Injunction. 

One  co-tenant  may  maintain  an  action  for  an  injunction 
against  a  trespassing  stranger  to  preserve  the  joint  property ; 
and  so  he  may  maintain  an  action  against  his  co-tenant  who  has 
taken  ]X)Ssession  of  the  joint  property  to  his  exclusion,  is 
denying  his  title,  and  is  working  the  joint  property,  on  the 
ground  that  such  act  is  one  of  waste. 


48 


§286.     Surrender  of  lease  by  co-tenant. 

One  co-tenant  in  common  cannot,  without  the  consent  of  his 
fellow  tenants,   bind   their   interests  by   a   sun*ender   of  their 

44^eck     V.     O'Connor,     21     Mont.  46  Hooks    v.    Forst,     165    Pa.    St. 

100;    53    Pac.    Rep.    94;    Haven    v.  238;   30  Atl.   Rep.  846. 

""  [plilgarten,    19    111.    90;    Alexander  •it  Churchill   v.   Lammers,   00   Mo. 

■  .  Ellison,  79  Ky.  148.  App.  244. 

■■' Ends    V.    Retherford,    114    Ind.  -ts  Williamson  v.  Jones,  43  \A\  Va. 

■^73;   16  N.  E.  Rep.  587.     See  Pren-  562:    27    S.   E.  Rep^.   411;    38  L.   R. 

tice    V.     Janssen,     79    N.     Y.    478;  A.    694.     See    Trees    v.    Eclipse    Oil 

Holbrooke     v.     Harrington     (Cal.),  Co..  47   W.  Va.  107;   34  S.  E.  Rep. 

36    Pac.    Rep.    365.  933. 


CO-TENANTS.  ^^"^ 

\es.ser  unless  he  is  given  express    (or  perhaps  implied)    an- 
thority  so  to  do.^*' 

§287.     Payment  of  rent  or  royalties. 

^Vliere  joint  owers  of  land  give  an  oil  lease  upon  it,  the 
lessee  may  pay  the  royalties  or  rent  to  both  or  either  one  of 
them ;  and  if  one  of  them  convey  his  interest  in  the  land  or 
assign  his  interest  in  the  lease,  then  payment  may  be  Inade  to 
the  remaining  lessor  or  to  the  assignee,  and  either  can  receipt 
for  it." 

§288.     Fidelity  relation  between  members  of  a  mining  partnership. 

There  is   not  that  relationship  existing  betAVcen   tenants  in 
common  or  partners  of  a  mining  partnership  which  forbids  one 
tenant  or  one  partner  demanding  and  receiving  a  higher  smn 
for  his  interest  in  the  property  than  is  paid  therefor  to  his  co- 
workers, as  exists  between  members  of  an  ordinary  partnership 
and  prevents  such  a  transaction."     Thus  where  it  appeared  that 
tenants  in  common  of  a  mine  had  formed  a  mining  partnership 
to  develop  the  mine,  showing  profits  and  losses  in  proportion  to 
their    respective   losses;    but    there   was    no    such    partnership 
fonned  for  the  purpose  of  selling  the  property;  and  the  part- 
ners had  settled  up,  and  there  was  no  further  agreement  to 
develop  the  mine;  it  was  held  that  one  partner  who  had  so  d 
his  interest  for  more  than  his  co-partners  had  received  could 
not  be  made  to  account  to  them  for  the  surplus,  for,  as  to  the 
mine,   thev   were   only  tenants    in   common.-     A    partnership 
agreement  to  locate  a  mining  claim  is  within  the  Statute  of 
Frauds  and  must  be  in  writing  to  bind  the  partners ;  and  if  it  is 
not  in  Avritin-,  the  remaining  partners  are  without  a  remedy  if 
one  of  their ^  number  takes  title  to  a  claim  in  his  own  name, 

.0  Edmonds   V.   Mounsey.,    15   Ind.  -  S.int    -    M^Calnnont    Oil    Co 

App    399;  44  N.  E.  Rep.  196;  Will-  184  Pa.  St.  202;   41  W.  ^.  C.  491, 

iains  V.  Vanderbilt,  145  HI.  238;  34  38  Atl.  Rep.  1021. 
N   E   Rep   476;  Hooks  v.  Forst,  165  52  Harris  v.  Lloyd.  11  Mont.  390, 

Pa    St   247;  30  Atl.  Rep.  846.  28  Pac.  Rep.  736. 

'  -r-,      X  53  Harris  v.  Llovd,  supra. 

50  Hooks  V.  Forst,  swpra.  narrib  v.  i.    .v    , 


310  OIL    AND    OAS, 

to  their  exclusion,  unless  }>artnei'shij>  funds  have  been  ex- 
pended in  its  acquisition,  in  which  event  equitable  relief  will 
be  given,  on  the  ground  of  a  resulting  trust. °*  Where  four 
purchased  mining  land  from  the  State,  only  two  giving  bonds, 
with  sureties,  for  the  purchase  money ;  and  all  but  one  left  the 
State,  abandoned  the  work,  gave  the  remaining  one  no  aid,  al- 
lowing him  to  be  pressed  for  money ;  and  he  surrendered  the 
land  to  the  State,  and  afterwards  repurchased  it  in  his  owm 
n£hne,  and  sold  it  at  a  profit,  it  was  held  that  he  was  not  bound 
to  account  to  his  partners  for  tlie  profit,°°  It  was  considered 
that  the  three  partners  had  abandoned  the  enterprise.^"  Wliere 
certain  parties  purchased  land  for  themselves,  and  represented 
to  a  company  to  be  formed  that  they  had  purchased  such  lands 
for  tlie  proposed  company,  they  having  been  obtained  at  first 
cost  from  the  vendors;  it  was  held  to  be  a  fraud  upon  those 
interested  in  the  company  to  allow  such  purchasers  to  put  them 
into  the  company  at  a  price  in  advance  of  the  actual  cost  price, 
without  first  informing  such  associates  of  the  actual  advance. 
They  were  required  to  account  for  the  ]u'ofits  they  had  made 
in  the  transaction.^'  In  a  case  of  this  character  this  language 
was  used : 

"  There  are  two  principles  applicable  to  all  partnerships  or 
associations  for  a  common  pur]X)se  of  trade  or  business  which 
appear  to  be  well  settled  on  reason  and  authority.  The  first  is, 
that  any  man  or  number  of  men,  who  are  the  owners  of  any 
kind  of  property,  real  or  personal,  may  form  a  partnership  or 
association  with  others,  and  sell  that  property  to  tlie  association 
at  any  price  Avhieh  may  be  agreed  upon  between  them,  no 
matter  what  it  may  have  ordinarily  cost,  provided  there  be  no 
fraudulent  misrepresentation  made  by  tlie  vendors  to  their  as- 
sociates. They  are  not  bound  to  disclose  the  profit  which  they 
may^realize  by  the  transaction.  They  were,  in  no  sense,  agents 
or  trustees  in  the  original  purchase,  and  it  follows,  that  there 

54  Craw  V.    Wilson,    22   Nev.    385 ;  r,n  Rhea    v.    Vannoy,    1    Jones    Eq. 

40  Pac.  Rep.  1076.  282. 

S3  Rhea    v.    Tathem,    1    Jones    Eq.  ■'''"  Simons  v.  Vulcan  Oil,  etc..  Co., 

200.  61    Pa.    St.    202.     See    McElhenny'a 

A'-'-o^1    01   Pa.  St.  1S8. 


01  1 

CO-TENANTS. 


is  „o  confidential  relation  between  parties,  which  affects  them 
with  anv  trust.     It  is  like  any  other  case  of  vendor  and  vendee 
They  deal  at  arm's  length.     Their  partners  are  in  no  b<.t  e, 
position  than  strangers.     They  must  exercise  their  owii  judg- 
ment as  to  the  value  of  what  they  buy.     As  it  is  succmetly    n 
well  stated  in  Foss  v.  Harl»ttle  »  '  A  party  may  l-™  a  .k  i 
right  to  say,  I  begin  the  transaction  at  this  time.     I  have  pui 
chased  land,  no  matter  how  or  from  whom  or  at  what  pr,...     1 
,m  willing  to  sell  it  at  a  certain  price  for  a  given  pu.,x,^. 
This  principle  was  recognized  and  applied  by  this  court  m  .he 
I!:;    case'of  McElhenny  v.  Hubert  Oil  Co.»     '    t  nowhere 
appears,'  said  the  present  Chief  Justice,  '  that  McElhennx ,  ,h. 
"•Aaser  from  Ilul^rt,  the  original  owner,  did  it  as  the  age 
If  Jlessrs.  Baird,  Boyd  &  Co.  and  others,  though  he  bought   t 
to  sell  again,  no  doubt;  he  had  a  ,«rfect  right,  therelore,    o 
deal  with  them  at  arm's  length,  as  it  seems  he  did.      An.  , 
again  •     '  Tf  the  pro,ierty  was  not  purchased  by  Mcklhennv  t..i 
,he  use,  and  as  agent  for  the  company,  but- for  his  own  use,  he 
,„ight  sell  it  at  a  profit,  ino«t  assuredly.     Xo  subsequent  pur- 
cliTsers   from  his  vendees  would  have  any  right  to  c.<.ll  upon 
him  to  account  for  the  profits  made  on  his  sale.       In  that  case, 
McElhenny,  being  the  o^vner  of  property  which  had  cost  l,n„ 
only  $4,000,  sold  i,  to  Baird,  Boyd  &  Co.  ami  ''^^^"Ij^^ 
ciatcd  with  him  to  form  an  oil  e<,mpany,  for  $12,000,  and    t 
wa.  decided  that  the  company  could  not  call  him  m  equity  to 
account  for  the  profit  he  had  made.     The  se<.ond  pnucilde  ,> 
that  where  persons  form  suck  an  association,  or  begin  to  s  a,  t 
the  project  of  one,  from  that  time  they  do  st«nd  in  a  confiden- 
tial relation  to  each  other,  and  to  all  otliers  who  may  subse- 
quentlv  become  members  or  subscribers,  au.l  it  is  not  competent 
for  an;  one  of  them  to  purchase  property,  for  the  purpose  of  such 
a  companv,  and  then  sell  it  at  an  advance,  without  a  full  dis- 
closure of  the  facts.     They  must  account  to  the  companv  tor 
the  profit,  because  it  legitimately  is  theirs.      It  ,s  a  fami ha, 
principle  of  the  law  of  partnership  -  one  partner  '^-">';*    '"^ 
and  sell  to  the  partnership  at  a  profit;  nor  ,f  a  partneish.p  is 

..■2  H»re  48a.  »  "'  P"'  ^'-  "'■ 


312  OIL    AND    GAS. 

in  contemplation  merely,  can  he  purchase  with  a  view  to  a 
future  sale,  without  accounting  for  tlie  profit.  Within  the 
scope  of  the  partnership  business,  each  associate  is  the  general 
asrent  of  the  others,  and  he  cannot  divest  himself  of  that  char- 
acter  without  their  knowledge  and  consent.  This  is  the  prin- 
ciple of  Ilichens  v.  Congrove,''"  Fawcett  v.  Whitehouse,***" 
and  the  other  cases  which  have  been  relied  on  by  the  a]i- 
pellants.  It  was  recognized  in  ^IcElhenny  v.  Hubert  Oil 
Co.,  just  cited,  and  also  in  Simons  v.  The  Vulcan  Oil 
Co.*'^  Both  of  theso  cases  were  complicated  with  evidence 
of  actual  misrepresentations  as  to  the  original  cost  of  the 
property  to  the  vendors.  In  the  opinion  of  the  court  in 
the  last  case,  delivered  by  Thompson,  C.  J.,  it  is  said: 
'  If  the  defendants,  in  fact,  acted  as  the  agents  of  the  company 
in  acquiring  the  property,  they  could  not  charge  a  profit  as 
against  their  principal.  Xor  was  tlieir  ]K)sition  any  better  if 
they  assumed  so  to  act  without  precedent  authority,  if  their 
doings  were  accepted  as  the  acts  of  agents  by  the  association  or 
company.  If  in  order  to  get  up  a  company,  they  represented 
themselves  as  having  acted  for  tlie  association  to  be  formed, 
and  proposed  to  sell  at  the  same  price  they  paid,  and  their  pur- 
chases were  taken  on  these  representations,  and  stockliolders  in- 
vested in  a  reliance  upon  them,  it  would  be  a  fraud  on  the 
company,  aaid  all  those  interested,  to  allow  them  to  retain  the 
large  profits  paid  them  by  the  company,  in  ignorance  of  the 
true  sums  actually  advanced.'  The  defendants  in  that  case 
were  subscribers,  with  others,  to  the  stock  of  a  projected  oil 
comp^any,  and,  after  the  plan  had  been  formed,  secured  to  them- 
selves by  contract  the  refusal  of  tlie  property,  which  they  after- 
wards sold  to  the  company  at  a  greatly  advanced  price."  ®" 

GO  4  J?uss.    562.  62  Densmore  Oil  Co.  v.  Densmore, 

*Go  1   Euss.   and   M.   132.  64  Pa.  St.  43. 

6161    Pa.    St.   202. 


CHAPTER  XII. 

CONTRACTS   FOR  A  LEASE. 

§289.  Not  often  drawn  into  controversies. 

§290.  Indefiniteness. 

§291.  What  is  a  sufficient  writing. 

§292.  Effect  of  taking  possession  under  contract. 

§293.  Specific  performance  of  contract  for  lease. 

§294.  Damages  for  breach  of  contract  to  give  lease. 

§289.     Not  often  drawn  into  controversies. 

Contracts  for  leases  of  gas  or  oil  lands  are  not  often  brought 
before-  tlie  courts ;  but  such  contracts  with  reference  to  mining 
leases  are  not  uncommon,  and  from  these  analogous  cases  we 
will  draw  a  few  illustrations. 

§290.     Indefiniteness. 

If  a  contract  for  a  lease  be  indefinite  or  uncertain  in  its 
terms,  it  cannot  be  enforced."  It  must  be  an  actual  indefinite^ 
ness,  and  not  an  apparent  one  which  can  be  removed  by  parol 
evidence.-  Where  the  description  is  so  indefinite  as  to  not  de- 
scribe the  premises,  the  contract  cannot  be  enforced,  even 
though  the  lessee  be  put  into  a  possession  of  a  part  of  them,  m 
connection  with  another  person  asserting  similar  rights  to  a  part 
of  it ;  and  if  the  lessee  has  not  complied  with  all  the  agreements 
on  his  part,  he  is  without  a  remedy.^  Mined  products  are  con- 
tinuously fluctuating  in  value,  and  for  that  reason  time  is  of 

1  Lancaster    v.    DeTrafford,    31    L.  Cope,    2.5    Beav.    140;    27    L.   J.    Ch. 

,T    Ch    554-    7  L.  T.  40;    10  W.  K.  468;   4   .Jur.    (X.  S.)    227;   31   L.  T. 

474;  8  Jur.'  (N.  S.)   873.  (0.  S.)  48;  6  W.  R.  304. 

2Shardlow    v.    Cotterell.    20     Ch.  3  Lancaster  v.   DeTrafford.    31    L. 

Div.  90;   51  L.  J.  Ch.  3.53;  4.5  L.  T.  .J.   Ch.   .5.54;    7  L.  T.   40;    10  \Y.   E. 

572;    30   W.    R.    143;    Haywood    v.  474;   8  Jur.    (N.  S.),873. 

oi  o 
oio 


314  OIL    AND    GAS. 

the  essence  of  all  contracts  for  a  mining  lease;  and  tlie  contract 
in  this  respect  must  be  definite.'* 

§291.     What  is  a  sufficient  writing. 

As  an  oil  lease  is  an  interest  in  lands,  a  contract  to  give  one 
must  be  in  writing  in  order  to  bind  the  owner  of  the  land,  the 
Statute  of  Frauds  requiring  this.  The  writing,  to  be  a  bind- 
ing c*ontract,  must  be  signed  by  the  owmer  of  the  land,  but  need 
not  l>e  l)y  the  person  to  receive  the  lease,  though  that  is  the 
usual  practice.^  A  formal  agreement  is  not  necessary,  it  is 
sufficient  if  there  be  a  note  or  memorandum  of  the  agreement 
containing  the  names  of  the  parties,  the  consideration,  and  the 
subject  matter. **  The  contract  may  be  embraced  in  two  or 
more  papers ;  and  the  language  used  in  the  several  papers  may 
be  such  as  connect  them  without  further  evidence  ;^  but  if  the 
language  used  does  not  so  connect  them,  parol  or  other  evidence 
is  admissible  for  that  purpose.^  The  contract  may  be  signed 
by  the  agent  of  the  proi>erty  owner,  without  having  l>een  au- 
thorized in  writing  so  to  do ;  and  if  the  person  signing  had  no 
authority  so  to  do,  yet  his  act  may  be  ratified  and  tlius  become 
binding.^  An  agreement  for  a  lease  must  be  an  actual  agi'ee- 
ment,  and  merely  drawing  up  a  written  paper  and  sigiiing  it, 
when  in  fact  there  is  no  agreement  will  not  make  an  agreement 

4  Pendergast  v.   Tiirton,    13  L.   J.  48  L.  J.  Ch.    10;    39  L.  T.   173;   26 

Ch.   268;    5  Jur.    1102;    8  Jur.  205;  W.  K.  865. 

Huxhan  v.  Llewellyn,  21  W.  R.  570;  7  Boydell   v.   Dummond,    11    East. 

Walker   v.   Jeffreys,   1    Ha.   341;    II  142. 

L.  J.  Ch.  209;   6  Jur.  336;   London  s  Nene   Valley   v.   Dunkley.   4   Ch. 

V.   Mitford,   14  Ves.   58 ;   Aloway   v.  Div.  1 ;  Long  v.  Millar,  4  C  P.  Div, 

Braine.  26  Beav.  575;  33  L.  T.  100  450;   48  L  .J.  C.   P.   596;   41   L.  T. 

S'Laythoarp  v.  Bryant,  2  Bing.  N.  306;  27  W.  R.  720:  Pearce  v.  Gard- 

C.  735j^  5  L.  J.  C.  P.  217;   3  Scott  ner    [1897].   1   Q.   B.  688;    66  L.  J. 

238;  2  Hodges  25;  Seton  v.  Slade,  7  Q.  B.  457;   76  L.  T.  441;  45  W.  R. 

Ves.  274.  518;     Cochrane    v.    Justice    Mining 

c  Williams  v.  Lake,  2  El.  and  El.  Co.    (Colo.).   26   Pac.    Rep.    780. 

349;    29  L.  J.  Q.  B.   1 ;    6  Jur.    (N.  n  Dickinson  v.  Doodds,  L.  R.  2  Ch. 

S.)    45;    1   L.   T.   56;    8   W.    R.   41;  Div.  463;  45  L.  J.  Ch.  777;  34  L.  T. 

Sale  V.  Lambert  L.  R.  18  Eq.  1:   43  607;    24    W.    R.    594;    Bel    v.    Balls 

L.  J.  Ch.  470;  22  W.  R.  478;   Res-  [1897].    1    Ch.    663;    66    L.    J.    Ch. 

filter   V.   Miller,   3   App.   Cas.    1124;  397;  76  L.  T.  254;  45  W.  R.  378. 


CONTRACTS  FOR  A  LEASE.  315 

that  can  he  enforced.^*'  Part  performance  will  dispense  \vithi 
a  reduction  of  the  agi'eement  to  A\Titing;  and  such  a  part  per- 
formance is  where  possession  has  been  given  and  taken  under 
the  oral  contract,^^  not  where  it  has  been  taken  without  an  agree- 
ment —  or  where  possession  has  been  continued  by  agreement, 
followed,  in  eitlier  instance  by  expenditures  made  upon  the  faith 
of  the  contract/"  But  a  mere  understanding  is  not  sufficient, 
nor  is  what  may  be  termed  an  "  inchoate  "  agreement,  as  where 
the  contract  is  not  complete,  one  or  more  of  the  essential  parts 
yet  to  be  supplied.  Such  would  be  the  case  where  the  price, 
in  an  instance  of  a  sale  or  lease,  was  not  definitely  fixed, 
even  though  all  the  other  essentials  were  contained  in  the  writ- 
ing. But  even  in  an  instance  of  this  kind,  such  an  understand- 
ing may  be  rendered  valid  when  works  of  an  expensive  character 
have  been  built  u]X)n  the  premises  by  the  prospective  grantee 
or  lessee  with  the  full  knowledge  of  the  grantor  or  lessor,  upon 
the  faitli  of  the  undei'standing  being  carried  out  by  both  par- 
ties,^^  or  if  the  inchoate  agreement  being  completed,"  and  the 
works  so  constructed  would  be  useless  by  the  determination 
of  the  understanding  or  inchoate  agreement;  but  if  there  would 
be  no  such  loss,  then  the  understanding  or  inchoate  agreement 
would  not  be  carried  out.^^  It  is  not  uncommon  for  parties  to 
make  a  note  or  memorandum  of  a  contract  from  which  a  formal 

10  May  V.  Tliompson,  20  Cli.  Div.  393;  Dawson  v.  McFaddin,  22  Neb. 
705;  51  L.  J.  Ch.  917;  47  L.  T.  131;  34  X.  W.  Rep.  338;  Truman 
295;  Bellany  v.  Debenham  [1891],  v.  Trnman,  79  la.  506;  44  N.  W. 
1  Ch.  412;  60  L.  J.  Ch.  166;  64  L.  Rep.  721;  Moore  v.  Small,  19  Pa. 
T.  468;  39  W.  R.  257.  Of  course  a  St.  461;  Freeman  v.  Freeman,  43  N. 
contract  otherwise  illegal  cannot  be  Y.  34;  3  Am.  Rep.  657;  Hardesty 
enforced;  and  the  mere  fact  that  v.  Richardson,  44  Md.  617;  22  Am. 
it  is  put  in  writing  will  not  render  Rep.  57 ;  ]\Ianly  v.  Hewlett.  55  Cal. 
it  enforceable.  South  African  Ter-  94;  Lanwston  v.  Bates,  84  111.  524; 
ritories  V.  Wallington  [1898],  A.  C.  25  Am.  Rep.  466;  Murphy  v.  Stell, 
309;  67  L.  J.  Q.  B.  470;  78  L.  T.  43  Tex.  123;  Lester  v.  Lester,  28 
426;  46  W.  R.  545.  Gratt.  737. 

11  Sui'combe  v.  Pinniger,  3  De  G.  i' Jackson  v.  Cator,  5  Ves.  687. 
M.  and  G.  571;  22  L.  J.  Ch.  419.  "Powell  v.  Thomas,  6  Ha.  306. 

i2Hodson   V.    Heuland    [1896],    2  i5  Bankart   v.   Tennant,   L.   R.    10 

Ch.  428;  65  L.  J.  Ch.  754;  74  L.  T.  Eq.  141;  39  L.  J.  Ch.  809;  23  L.  T. 

881;  44  W.  R.  684;  Neale  v.  Ncale  137;  18  W.  R.  639. 
9  Wall  1 ;  Seavev  v.  Drake.  62  N.  H. 


316  OIL    AND    GAS. 

contract  is  to  be  drawn  up.  This  occurs  also  often  in  instances 
of  negotiations  by  correspondence.  I"sually,  if  not  always, 
tbese  notes  or  memoranda  contemplate  the  drawing  up  of  a 
formal  contract  before  there  is  a  binding  obligation  between  the 
parties.  When  sucli  is  the  case,  tJic  failure  to  execute  such  a 
formal  contract  may  or  not  terminate  the  relation  of  the  fmr- 
ties  or  the  enforceability  of  the  negotiations  or  agreement.  If 
the  note,  instrument  or  writings  contain  their  final  agreement 
it  may  be  enforced,  notwithstanding  the  fact  that  no  formal 
agreement  has  ever  been  drawn  up,  for  such  note,  instrument 
or  writings  contain  thoir  contract.^"  If  it  does  not  contain  the 
final  agreement,  it  cannot  be  enforced."  Of  course,  in  all  such 
instances  the  question  is  one  of  construction  of  the  written  note 
or  memorandum.^**  Where  the  contract  arises  out  of  an  offer 
and  acceptance,  the  acceptance  must  be  as  broad  as  the  offer  and 
not  exceed  it;  for  if  the  acceptance  contain  any  qualification  of 
the  offer  it  will  be  regarded  as  a  counter  offer  which  will  re- 
quire the  acceptance  of  the  party  making  the  first  offer ;  in 
which  instance  the  offer,  counter  offer  and  acceptance  will  con- 
stitute the  contract  for  the  lease. ^^  Thus  in  answer  to  an  ad- 
vertisement for  bids  for  a  lease  of  a  mine,  a  mining  company 
received  a  letter  in  which  the  writer  offered  "  to  take  lease  on 
the  whole  proyierty  at  thirty-five  per  cent  royalty  at  eighteen 
months,  and  agree  to  expend  at  least  five  thous.and  dollars  every 
month  in  development  work ;  I  to  have  thirty  days  to  begin  work, 
in  order  to  make  examination  of  property,  and  put  machinery 
in  place.  Lease  to  date  from  time  of  commencement  of  work. 
Settlement  as  usual."  The  officers  of  the  mining  company 
voted  to  accept  the  offer,  and  empowered  its  president  to  draw 
up  a  lease  in  conjunction  with  the  person  making  the  offer,  and 
present  it  to  the  board  of  directors  for  their  consideration.     The 

16  flossiter  v.  Miller,  3  App.  Cas.  is  Rossiter    v.    Miller,    supro 
1124;  48  L.  J.  Ch.  10;  39  L.  T.  173;  isPattle  v.  Hornibrook  [1897],  1. 
26    \V.    R.    860;    Xorth    v.    Peroival  Ch.  25;   66  L.  J.  Ch.   144;  75  L.  T. 
[1898].    2    Ch.    128;    67    L.    J.    Ch.  475;    45    W.    R.    123;    Roiitled?e   v. 
321;  78  L.  T.  615;  46  W.  R.  552.  Crant.    4    Ring.    660;    South    Heton 

17  Lloyd  V.  Newell  [1895],  2  Ch.  Coal  Co.  v.  Haswell  Coil  To. 
744;  64  L.  J.  Ch.  744;  73  L.  T.  [1898],  1  Ch.  465;  67  L.  J.  Ch. 
154:  44  \Y.  R.  43.  238;    78  L.  T.  366;  46  W.  R.  355. 


CO^"TRACTS  FOR  A  LEASE.  317 

president  at  once  telegi'aplied  the  bidder  that  the  lease  had  been 
awarded  to  him ;  and  this  was  held  to  constitute  a  binding  con- 
tract for  a  lease,  and  the  company  could  not  insist  that  he  ac- 
cepted a  lease  which  required  him  to  do  certain  work  regardless 
of  its  productiveness,  and  give  it,  the  company,  privileges, 
under  certain  contingencies,  to  dispose  of  the  ore  mined."*' 

§292.     Effect  of  taking  possession  under  contract. 

Usually  one  put  into  possession,  under  a  contract  for  the 
purchase  of  real  estate,  before  the  actual  completion  of  the  pur- 
chase, waives  the  right  to  object  to  the  vendor's  title  and  for 
that  reason  refuse  to  complete  the  purchase.  Care,  however, 
must  be  observed  in  this  connection.  Thus  tliere  is  a  broad 
difference  between  a  possession  taken  under  a  contract  which 
provides  that  the  title  shall  be  a  good  one,  and  also  provides 
that  possession  may  be  taken  before  the  purchase  is  completed ; 
and  one  under  which  possession  is  taken  makes  no  provision 
for  such  a  title.  And  where  it  is  claimed  that  there  was  a 
waiver  of  a  right  to  insist  that  a  good  title  be  shown  before  the 
purchase  shall  be  completed,  the  distinction  between  instances 
where  the  vendor  can  remove  the  objections  to  the  title,  and 
those,  to  the  knowledge  of  the  vendee  that  they  are  not  remov- 
able, must  be  lx)rne  in  mind.  And  the  reason  for  this  is  that 
where  a  vendee  knows  of  defects  in  the  title  or  conditions  af- 
fecting it,  and  that  the  vendor  has  no  control  over  them,  by 
taking  or  remaining  in  possession  of  it,  ho  waives  his  right 
to  insist  on  the  particular  irremovable  objections  of  which  he 
had  knowledge  before  he  took  possession."^  These  rules,  how- 
ever, are  not  applicable  in  their  full  force  to  sales  or  leases  of 
mines ;  for  as  their  time  is  often  of  the  essence  of  a  contract, 
one  who  has  agreed  to  accept  the  lease  of  a  mine  may  take  pos- 
session of  it  before  the  lease  is  granted,  and  his  entrance  will 

sf^  Cochrane  v.  Justice  Mining  Co.  Bown     v.    Stenson,    24     Bear.    031; 

(Colo.),  26   Pac.  Rep.  780.  Burnell  v.  Brown,  1  J.  and  W.  168; 

21 /«   re  Gloag  and  Miller's   Con-  Stevens  v.  Giiffy.  3  Russ.  171;  6  L. 

tract.  2.3  Ch.  Div.  320;  52  L.  J.  Ch.  J.    (O.  S.)    164. 
654;   48  L.  T.  629;    31    W.  R.   601; 


818  oil.    AND    GAS. 

not  be  considered  as  an  acceptance  of  the  title  of  the  lessor  tO" 
grant  the  lease.'" 

§293.     Specific  performance  of  contract  for  lease.. 

Where  a  valid  contract  for  a  lease  has  been  executed,  a  court 
of  equity  will  decree  a  specific  performance,  and  compel  the  ex- 
ecution of  a  lease  in  accordance  with  the  terms  of  the  contract, 
but  the  court  will  not  decree  a  working  of  the  premises  to  which 
the  contract  relates,  leaving  the  parties  to  their  action  for  dam- 
ages."^ And  where  damages  will  afford  adequate  relief,  or 
there  is  an  uncertainty  in  the  contract,  specific  performance  will 
not  be  decreed.^*  If  the  contract  for  a  lease  is  not  complete, 
then  specific  performance  will  not  be  decreed  nor  damages 
awarded ;  and  an  absence  of  any  essential  part  in  the  contract 
will  be  fatal  to  tlie  person  claiming  under  it."^  But  mere  un- 
certainty as  the  identity  of  the  land  referred  to,  which  may  be 
removed  by  parol  evidence,  will  not,  however,  defeat  the  action 
either  for  damages  or  for  specifio  performance.^*'  Only  such 
a  lease  will  be  decreed  as  the  contract  calls  for^  witliout  any 
variation  from  it.^^  If,  pending  the  suit  for  a  s}>ecific  perform- 
ance, the  owner  lessen  the  value  of  the  lease-to-be,  by  extracting 
the  thing  for  which  the  lease  was  granted,  the  court  will  award 
damages  in  that  suit,  or  if  they  be  not  discovered  until  after 
the  decree,  in  a  supplemental  action.^*  If  there  has  been  inad- 
vertent misreipiresentation  on  the  part  of  the  owner  of  the  land, 
specific  performance  at  his  instance  will  not  lie  to  compel  the 

22  Haywood  v.  Cope,  27  L.  J.  (N.  Sm.  335;  10  L.  T.  105;  11  Jur.  918; 
S.)  Ch.  468;  25  Beav.  140;  4  Jur.  Price  v.  Griffith,  De  G.  M.  and  G. 
(N.  S.)  227;  31  L.  T.  (0.  S.)  48;  80;  21  L.  J.  Ch.  78;  15  Jur.  1003; 
6   W.   R.    304.     See  Davis   v.   Shep-  18  L.  T.    (O.  S.)    190. 

har*,  L.  R.,  1  Ch.  App.  410;   35  L.  25  Maynell  v.   Surtees,   3   Sm.  and 

J.  Ch.  581;   15  L.  T.  122.  G.  101. 

23  Wolverhampton  R.  R.  Co.  v.  20  Doe  v.  Martin,  4  B.  and  Ad, 
London,  etc.,  R.  R.  Co.,  L.  R.  16  Eq.  785;  Price  v.  Griffith,  supra. 

433;  43  L.  J.  Ch.  131;   Powell  Duf-  27  Carne  v.. Mitchell,  15  L.  J.    (N. 

fryn  Coal  Co.  v.  Taflf  Vale  Rail  Co.,  S.)    Ch.  287. 

L.  R.  9,  Ch.  App.  331;  43  L.  J.  Ch.  2?  Nelson  v.  Bridges,  2  Beav.  239;. 

575;   30  L.  T.  208.  3  Jur.   1098. 
2t  Ricketts   V.   Bel!,   1   De   G.   and 


CONTRACTS  FOR  A  LEASE.  319 

acceptance  of  the  lease  made  pursuant  to  the  terms  of  tlie  con- 
tract,^^  and  the  same  is  much  more  so  where  both  wilful  mis- 
representation and  fraud  have  been  used  to  induce  the  execution 
of  the  contract.^''  But  mere  vague  commendation  or  pviffing  is 
not  enough  to  defeat  sj>ecific  performance ;  ^^  nor  is  glowing  de- 
scriptions of  the  probable  success  of  an  adventure.^"  Xor  is 
there  any  misrepresentation  such  as  will  avoid  the  contract  if 
the  j>erson  complaining  of  them  relied  upon  his  own  examina- 
tion of  the  premises,  or  was  not  misled  by  them.^^  Occasionally 
a  specific  jDerformance  of  a  contract  will  not  be  decreed  where 
the  owner  of  the  land  has  not  been  apprised  of  the  value  of  the 
lease  he  has  contracted  to  grant,  as  where  he  has  been  "  sur- 
prised," as  it  were,  into  signing  the  contract.  Thus  where  tlie 
plaintiff  knew  all  alx)ut  the  value  of  the  mining  privileges, 
and  the  defendant  did  not,  having  recently  purchased  the  land, 
and  he  hurried  the  defendant  into  signing  the  agreement,  the 
■court  refused  to  decree  a  specific  performance  of  the  agreement, 
on  the  ground  that  an  undue  advantage  had  been  taken  of  the 
defendant,  and  also  on  the  suspicion  that  the  royalties  were 
grossly  inadequate,  as  was  alleged.^*  By  delaying  his  action 
for  specific  performance  —  as,  for  instance,  three  years  and  a 
half  —  the  person  insisting  upon  a  decree  for  it  may  lose  his 
right  to  it.'^^  Delay  on  the  part  of  the  owmer  in  tendering  a 
coal  lease,  until  much  of  the  coal  has  l^een  taken  out  of  the 
premises,  will  defeat  his  right  to  a  decree  for  specific  perform- 
ance.''' 

29Higgins  V.  Samels,  2  J.  and  H.  6  CI.  and  F.  232;  2  L.  J.  Exch.   1; 

460;   7  L.  T.  240;   Rieketts  v.  Bell,  1  Younge  407;  Colby  v.  Gadsden,  34 

supra.  Beav.  416;   11  Jur.   (N.  S.)   760;   12 

30  Powell  V.  Elliott.   L.  R.   10  Ch.  L.  T.  197. 

App.  424;    33  L.  T.   110;   23  W.  R.  34  Walters  v.  Morgan,  3  De  G.  F. 

777.  and  J.  718;  4  L.  t.  758. 

31  Jennings  v.  Broughton,  5  De  33  Eads  v.  WilliaraSj  24  L.  J.  ( N. 
•G.  M.  and  G.  126;  Higgins  v.  Sam-  S.)  Ch.  531;  4  De  G.  M.  and  G. 
«Is,  supra.  674;   11  Jur.    (N.  S.)    193;   3  W.  R. 

32  Jennings  v.  Broughton,  17  98;  24  L.  T.  162;  Macbride  v. 
Beav.  234;  22  L.  J.  Ch.  585;  17  Weekes,  22  Beav.  533;  2  Jur.  (X. 
Jur.  305;    1   W.  R.  441.  S.)   918;   28  L.  T.    (O.  S.)    135;   Gee 

33  Jennings    v.    Broughton.    5    De  v.  Pearse,  2  De  G.  and  Sm.  325. 

O.  ]\I.  and  G.  126:  Small  v.  Attwood.  3c  Kille   v.   Reading   Iron    Works, 


320  OIL    AND    (JAS. 

§294.     Damages  for  breach  of  contract  to  give  lease. 

Where  a  person  enters  into  a  contract  to  give  a  lease,  and  he 
has  neither  title  to  the  land  to  be  leased  nor  power  to  execute  a 
lease,  the  person  contracting  with  him  has  a  right  to  and  may 
recover  substantial  damages  from  him  for  the  breach  of  the 
contract.'''^  Such  is  not  the  case,  however,  where  the  title  is 
merely  defective,  or  where  the  lessor  has  some  title ;  for  there 
only  nominal  damages  are  recoverable.  If  the  lease  be  granted 
and  possession  be  taken  or  attempted  to  be  taken  under  it,  but 
the  lack  of  title  or  defect  in  it  be  not  discovered  until  after  the 
lease  be  executed  and  such  possession  be  taken  or  attempted,  the 
lessee  may  recover  substantial  damages  under  the  covenant  for 
quiet  enjoyment;  and  the  same  is  true  if  there  be  an  express 
covenant  for  title.^^ 


141  Pa.  St.  440;  21  Atl.  Rep.  6G6. 
Where  a  contract  for  a  mining 
lease  contained  a  clause  permitting 
a  surrender  by  the  proposed  lessee 
at  any  time  on  giving  notice,  it  was 
held  that  a  statute  authorizing  spe- 
cific performance  of  an  agreement 
for  a  lease  did  not  authorize  speci- 
fic performance  of  such  an  agree- 
ment entered  into  without  a  valu- 
able consideration,  the  lessee  hav- 
ing nothing  that  would  entail  a  loss 
on  his  part  in  case  of  its  non-en- 
forcement. Grummett  v.  Gingrass, 
77  Mich.  369;  43  N.  W.  Rep.  999. 
37  Robinson  v.  Hurman,  1  Exch. 
850;  18  L.  J.  Exch.  202;  Hopkins  v. 


Grazebrook,  6  B.  and  C.  31;  9  D. 
and  R.  22;  5  L.  J.  (O.  S.)  K.  B.  65. 
38  Flureau  v.  Thornhill,  2  W.  Bl. 
1078;  Walker  v.  Moore,  10  B.  and 
C.  416;  8  L.  J.  (O.  S.)  K.  B.  159. 
See  Engel  v.  Fitch,  L.  R.  3  Q.  B. 
314;  9  B.  J.  S.  85;  37  L.  J.  Q.  B. 
145;  18  L.  T.  318;  16  W.  R.  785. 
W'here  the  vendor  of  an  interest  in 
a  lease  retained  the  possession  of  it 
without  being  obliged  to  make  a  re- 
sale of  it  at  a  lower  price,  and  he 
made  no  tender  of  a  conveyance  of 
it.  it  was  held  that  he  could  recover 
only  nominal  damages.  Garner  v. 
Peters,  9  Pa.  Super.  Ct.  Rep.  29; 
43  W.  N.  C.  261. 


CHAPTER  XIII. 


ADVERSE  POSSESSION-STATUTE  OF   LIMITATIONS. 

§295.  Peculiarities  of  oil  and  gas. —  Possession  of  sui'face. 

§29G.  Rule  as  to  oil  and  gas. 

§297.  Possession  of  surface  not  adverse  to  owner  of  oil  or  gas. 

§298.  Possession  of  oil  operator  not  adverse  to  owner  of  surface. 

§299.  Acquiring  right  to  oil  or  gas  under  Statute  of  Limitations. 

§300.  Receiver. —  Title  in   dispute. —  Injunction. 

§301.  Accounting. 

§295.     Peculiarities  of  oil  and   gas. —  Possession  of  surface. 

In.  discaissing  the  question  of  adverse  possession  and  the 
Statute  of  Limitations  in  regard  to  natural  gas  and  oil,  care 
must  be  taken  to  bear  in  mind  the  peculiar  character  of  this 
fluid  and  this  gas,  and  the  ownership  in  them.  The  owner 
cannot  claim  tliem  as  his  absolute  property  until  he  has  re- 
duced them  to  actual  possession.  While  upon  his  territory  he 
has  a  qualified  proiierty  in  them ;  but  as  soon  as  they  pass  from 
beneath  the  surface  of  his  land,  even  that  limited  o^vnership 
is  gone.^  If  tlie  land  has  been  leased  for  oil  or  gas  purposes,  it 
cannot  be  said  merely  because  the  lessor  occupies  the  surface  he 
has  adverse  possession  of  tlie  oil  and  gas.  The  same  rule  ap- 
plies to  coal  or  any  other  mineral." 

1  Westmoreland,    etc..    Co.    v.   De-  760;  Armstrong  v.  Caldwell,  53  Pa. 

Witt,  130  Pa.  St.  235;  18  Atl.  Rep.  St.   284;    Plummer  v.  Hillside  Coal 

724;    5  L.  R.  A.   731;   29  Amer.  L.  &  Iron  Co.,  160  Pa.  St.  483;  28  Atl. 

Reg.  93.  Rep.   853;   Moreland  v.   Frick  Coke 

sCatlin    Coal    Co.   v.    Lloyd,    176  Co.,    170  Pa.   St.   33;    32   Atl.   Rep. 

111.  275;  52  N.  E.  Rep.  144;  Catlin  634;   Lulay  v.   Barnes,    172  Pa.   St. 

Coal  Co.  v.  Lloyd,   180  111.  398;   54  331;    34  Atl.  Rep.  52;   37  W.  N.  C. 

N.   E.  Rep.  214;   Caldwell   v.   Cope-  409;     McBee    v.     Loftis,     1     Strob. 

land,   37  Pa.  St.  375;   72   Am.  Dec.  Eq.  90. 

321 


322  OIL    AND    GAS. 

§296.     Rule  as  to  oil  and  gas. 

What  is  true  of  coal  or  other  mineral,  is  also  tnie  of  oil  and 
gas.  It  is  not  sufficient  to  show,  where  title  by  adverse  posses- 
sion is  claimed  by  the  surface  owner  as  against  the  claimant 
or  owner  of  the  gas,  that  sudi  surface  owner  has  had  possession 
for  a  period  equal  in  length  to  the  period  required  to  establish 
title  to  land  by  adverse  possession,  where  there  has  been  a 
severance  of  the  ownership  of  the  oil  and  gas  from  land.^  In 
speaking  of  adverse  possession  in  such  an  instance,  the  Supreme 
Court  of  Pennsylvania  said : 

"  They  had  put  down  a  well,  which  had  tapped  the  gas- 
bearing  strata,  and  it  was  the  only  one  on  the  land.  They  had 
it  in  their  control,  for  they  had  only  to  turn  a  valve,  to  have  it 
flow  into  their  pipe,  ready  for  use.  The  fact  that  they  did 
not  keep  it  flowing,  but  held  it  generally  in  reserve,  did  not 
aifect  their  possession  any  more  than  a  mill  owner  affects  the 
continuance  of  his  water  right  when  he  shuts  his  sluice  gates. 
On  the  other  hand,  Bro^^^l  had  no  possession  of  the  gas  at  all. 
His  possession  of  the  soil  for  pur}X)ses  of  tillage,  etc.,  gave  him 
no  actual  possession  of  the  gas ;  and  he  had  no  legal  possession 
for  his  lease  had  conveyed  that  to  another.  How,  then,  had 
he  taken,  '  full  and  absolute  possession  of  the  premises  and 
rights,'  as  found  by  the  master;  apparently,  he  had  asserted  to 
the  complaints  his  claim  tliat  the  lease  was  forfeited.  In  addi- 
tion, on  one  occasion  when  the  agent  of  complainants  was  at 
their  well  for  a  specific  purpose,  Bro^\m  had  ordered  him  off 
the  land ;  but  there  is  no  evidence  that  he  went  until  he  had 
finished  his  business  there.  Shortly  before  this  the  complain- 
ants had  sent  men  on  the  land  to  l>egin  the  erection  of  a  der- 
rick for  a  second  well,  and  Brown  had  ordered  them  off.  This, 
A\4'iich  is  the  strongest  item  in  the  proof,  is  really  no  evidence 
at  all  of  dispossession  of  complainants.  They  still  remain  in 
possession  of  tlieir  well,  which  gave  them  the  sole  control  of 
the  gas,  so  far  as  its  utilization  was  concerned,  and  the  sole  pos- 

■'•  'S\urvi\y  v.  Allard.  100  Tenn. 
100;  43  S.  W.  Rep.  355;  39  L.  R.  A. 
24<i;  6G  Am.  St.  Rep.  740. 


ADVERSE    POSSESSION.  323 

session  of  which  it  was  capable,  apart  from  the  land,  from 
which  it  had  been  legally  severed  by  the  lease.  The  utmost 
that  can  be  said  of  snch  an  occurrence  is  that  it  was  a  violent 
and  temporary  interference  with  that  portion  of  complainant's 
rights  which  authorized  them  to  put  down  a  second  well.  This 
was  no  more  a  dispossession  of  complainants  from  their  occu- 
pation of  the  gas  than  blocking  up  one  of  a  farmer's  roads  to 
his  house  would  be  an  ouster  from  his  farm.  We  are  there- 
fore of  opinion  that  the  master  was  wrong  in  finding  as  a  fact 
that  complainants  were  out  of  possession,  and  should  be  remitted 
to  an  ejectment  to  establish  their  title  at  law."  * 


§297.     Possession  of  surface  not  adverse  to  owner  of  oil  or  gas. 

Possession  of  the  surface  is  not  an  adverse  possession  of  the 
oil  or  gas  beneath  it  wdiere  such  oil  or  gas  is  owned  by  another 
or  rather  w^here  such  other  has  a  right  to  reduce  it  to  possession. 
Such  occupation,  and  even  cultivation,  is  not  even  evidence  of 
adverse  enjoyment  of  the  right  to  take  oil  or  gas;  and  the  mere 
non-user  for  a  long  period  —  as  forty  years  —  of  the  right  to 
take  it  will  not  extinguish  it,  altliough  it  may  work  a,  forfeiture. 
"  As  the  right  was  neither  acquired  nor  evidenced  by  use,  sO'  we 
think  it  cannot  be  lost  by  misuse.  And  as  there  was  no  adverse 
enjoyment  to  raise  the  presumption  of  a  conveyance  or  release 
of  it,  the  right  of  those  holding  the  written  title  remains  unim- 
paired." ^  In  speaking  of  adverse  possession  of  coal  beneath 
the  surface  of  a  tract  of  land,  the  Supreme  Court  of  Pennsyl- 
vania used  the  following  langiuige : 

''  It  is  no  doubt,  the  general  presumption  that^  a  party  who 
has  possession  of  the  surface  of  land  has  possession  of  the  sub- 
soil also,  because,  ordinarily  the  right  to  the  surface  is  not 
severed  from  the  right  to  the  strata  below  the  surface.  But 
this  piresumption  does,  not  exist  when  these  rights  are  severed. 

4  Westmoreland,  etc.,  Co.  vs.  De-  106:  Davis  v.  Clark,  2  Mont.  310; 
Witt,  130  Pa.  St.  235;  18  Atl.  Ap.  Kingsley  v.  Hillside  Coal  &  Iron 
724;   29  Am.  L.  Reg.  93.  Co..   144  Pa.   St.  613;    23  Atl.   Rep. 

5  Said    of    coal    beneath    the    snr-  250. 
face.     Arnold    v.    Stevens.    24    Pick. 


324  OIL    AND    GAS. 

Each  tlien  becomes  a  distinct  possession.  In  such  a  case,  the 
possession  of  tlie  surface,  following  the  right,  is  as  distinct 
from  the  possession  of  the  minerals  or  subsoil  strata  which 
have  been  severed  in  right,  as  is  the  possession  of  one  tract  of 
land  from  that  of  another  not  in  contact  with  it.  Hence  it  is 
settled  that  when  by  a  conveyance  or  resei-vation  a  separation 
has  been  made  of  tlie  ownership  of  the  surface  from  that  of  the 
underground  minerals,  the  o^vner  of  the  former  can  acquire  no 
title  by  the  Statute  of  Limitations  to  the  minerals,  by  his  exclu- 
sive and  continual  enjoyment  of  the  surface.  Xor  does  the 
o^vner  of  the  minerals  lose  his  right  or  his  jDossession  by  any 
length  of  non-user.  He  must  be  disseised  to  lose  his  right ;  and 
there  can  be  no  disseised  by  act  that  does  not  actually  take  the 
minerals  out  of  his  possession.  There  seems  to  be  no  reason  why 
the  Statute  of  Limitations  should  not  be  held  applicable  to  all 
corporeal  hereditaments,  including  those  that  are  only  subsurface 
rights.  ...  In  Caldwell  v.  Copeland  ^  it  was  said  that 
adverse  possession  of  the  mine  by  the  owners  of  the  surface  for 
the  statutory  period  wO'uld  avail  as  title.  But  such  possession 
must  be  distinct  from  that  of  the  surface.  It  is  unaided  by 
surface  rights  or  surface  occupancy.  What,  then,  is  adverse 
possession  of  the  coal  in  a  tract  of  land,  in  a  case  where  the 
OAvner  of  the  land  has  by  deed  severed  the  ownership  of  the 
coal  from  the  ownership  of  the  surface  ?  Its  nature  cannot  be 
changed  by  the  fact  tliat  it  is  more  difficult  of  enjoyment.  Like 
adverse  possession  of  every  other  corporeal  hereditament,  it  must 
be  actual  (as  distinguished  from  oonstrucitive),  exclusive,  con- 
tinued, peaceable  and  hostile  for  twentyvone  years  in  order  to 
give  title  under  the  Statute  of  Limitations.  There  is  no  rea- 
son for  adopting  a  less  stringent  rule.  The  owner  of  the  sur- 
face can  acquire  title  against  the  o^vner  of  the  minerals  under- 
neath by  nO'  acts  or  continuous  series  of  acts  that  would  not  give 
title  to  a  stranger.  If  the  owner  of  a  coal  mine  is  not  in  actual 
possession,  and  the  owner  of  the  surface,  or  any  other  person, 
digs  pits  or  drives  adits  into  the  minerals,  and  carries  on  min- 
ing operations  there  continuously  for  the  statutory  period  ad- 

«  37  Pa.  St.  427. 


ADVERSE   POSSESSION.  325 

verselj  to  the  right  of  any  other,  he  may  acquire  a  right.  In 
such  a  ease  he  takes  actual  possession  of  the  entire  body  of 
minerals  in  the  tract  of  land.  He  may  therefore  acquire  a 
title  to  the  whole.  But  inasmuch  as  there  cannot  be  any 
residence  upon  the  coal,  or  cultivation  mthout  continual  pedis 
■possessio,  or  retention  of  tlie  hold  upon  the  mine,  tliere  can  Ix^. 
no  ouster  of  the  owmer,  and  consequently  no  acquisition  of  a 
right.  If  one  digs  turves  or  cuts  wood  upon  another's  land  for 
his  own  use,  and  if  he  sells  some  of  the  turves  he  dug  or  the 
wood  he  cut  to  the  neighbors,  it  is  not  pretended  tliat  he  can 
acquire  title  to  the  land  by  such  conduct,  though  repeated  at 
intervals  through  the  whole  period  of  twenty-one  years.  .  .  . 
The  court  below,  therefore,  erred  in  leaving  to  the  jury  to  find 
that  the  plaintiff  had  acquired  title  to  the  coal  by  having  taken 
out  some  of  it  for  family  and  neighborhood  uses,  at  intervals 
during  twenty-one  years,  without  any  evidence  tliat  the  taking 
had  been  constant  and  continuous."  ^ 

§298.     Possession  of  oil  operator  not  adverse  to  owner  of  surface. 

The  lessee  or  the  o}>erator  of  oil  wells  under  a  lease  does  not 
have  adverse  |X)ssession  of  so  much  of  the  surface  as  he  actually 
occupies  with  his  machinery,  wells,  den'icks,  pij^e  lines,  oil 
tanks  and  the  like,  as  against  the  o^vner  of  the  surface ;  and  he 
cannot  in  that  way  obtain  title,  at  least  so  long  as  tliere  is  oil 
to  be  pumped.^ 

§299.     Acquiring  right  to  oil  or  gas  under  Statute  of  Limitation. 

Title  may  be  acquired  by  adverse  possession  of  solid  mineral, 
but  the  possession  must  be  of  the  actual  mineral  and  not  of  tlie 
surface  under  which  it  lies  where  a  severance  of  the  mineral 
from  the  surface  has  taken  place. ^  But  if  one  take  possession 
of  the  surface,  where  no  severance  of  the  mineral  has  even 
taken  place,  adverse  possession  against  the  owner  of  the  land 
will  give  title  to  the  mineral  beneath  it ;  and  a  conveyance  of 

7  Armstrong   v.    Caldwell,    53  Pa.  » Armstrong   v.    Caldwell,    53    Pa. 

St.  284.  St.    284;    Caldwell   v.    Copeland,   37 

sDietz    V.    Mission    Transfer  Co.       Pa.  St.  427. 
<Cal.),  25  Pac.  Rep.  423. 


326  OIL    AND    GAS. 

the  mineral  by  the  rightful  o\\aier  before  the  statute  has  run  will 
not  be  such  a  resumption  of  possession  as  will  stop  the  running 
of  the  statute  —  it  is  not  an  entry  upon  the  land.^°  This  must  be 
an  open  and  not  a  secret  entry/^  Suppose,  however,  that  the 
owner  of  the  surface  should  exclude  the  owner  of  the  oil  or  gas 
beneath  the  surface  from  entering  on  such  surface  and  drilling 
for  the  oil  or  gas  for  a  period  equiv^alent  to  the  Statute  of  Lim- 
itations, and  during  that  period  such  owner  of  the  oil  or  gas 
had  endeavored  —  either  once  or  more  than  once  —  ineffeictually 
to  enter  on  the  surface  for  the  purpose  of  drilling  —  would  not 
such  acts  be  such  an  adverse  possession  as  to  defeat  the  right  of 
the  0A\Tier  of  the  oil  or  gas  ?  It  seems  to  us  it  would.  The 
rule  applicable  to  tenants  in  common  is  probably  the  true  one 
in  such  an  instance.  Tlie  0A\mer  of  the  oil  has  no  power  to 
secure  it  unless  he  can  enter  upon  the  surface ;  and  if  he  is  de- 
nied that  right  and  excluded  for  the  usual  period  of  the  Statute 
of  Limitations  applicable  to  adverse  possession,  it  seems  that 
he  has  lost  his  right  to  drill  for  and  take  the  oil.^" 

§300.     Receiver  —  title  in  dispute  —  injunction. 

A  receiver  will  be  appointed  to  operate  gas  or  oil  wells  when 
the  title  to  the  land  is  in  dispute,  in  order  to  prevent  a  waste 
during  litigation,  or  where  the  person  taking  the  oil  or  gas  is 
insolvent.^^  So  if  one  invade  the  premises  of  another  and  be- 
gin taking  oil  or  gas,  an  injunction  will  be  issued  upon 
proper  application,  to  restrain  him.^*  Where  the  claim  of  own- 
ership of  a  person  in  possession  dated  back  to  a  time  prior  to 
the  right  of  entry,  by  parties  who  were  out  of  possession,  and 
the  person  in  possession  was  solvent,  and  to  issue  an  injunction 
would  stop  operations   and   the   land   during  such   cessure  of 

loCatlin   Coal   Co.   v.   Lloyd,    180  Co..   144   Pa.   St.  G13;   23  All.  Rep. 

111.  398;  54  N.  E.  Rep.  214;  Catlin  250. 

Coal  Co.  V.  Lloyd,  176  111.  275;   52  12  See  Erskine  v.   Forest  Oil   Co., 

N.   E.    Rep.    144;    Kingsley  v.   Hill-  80  Fed.  Rep.  583. 
side  Coal   Co.,   144  Pa.   St.  613;   23  ^s  Nevada  Sierra  Oil  Co.  v.  Home 

Atl.  Rep.  250.  Oil  Co.,  08  Fed.  Rep.  673. 

11  Finnegon  v.  Steinner,  28  Pittsb.  i*  Indianapolis    Natural    Gas    Co. 

L.  J.    (N.  S.)    68;   5  Pa.  Super.  Ct.  v.    Kibby,    135   Ind.   357;    35   N.   E. 

Rep.  127;  Kingsley  v.  Hillside  Coal  Rep.  392. 


ADVERSE    POSSESSION. 


32' 


operations  would  be  drained  by  operations  on  other  lands,  the 
court-  refused  to  issue  an  injunction,  and  sent  the  parties  to  a 
court  of  law  to  establish  their  title  to  the  land.^^  Where  in  a 
bill  to  quiet  title,  it  appeared,  tliough  the  complainant  claimed 
title,  that  the  defendant  was  in  possession,  had  drilled  wells,  re- 
moved oil  from  the  premises,  and  was  drilling  more  wells,  the 
i'ourt  refused  to  gTant  relief,  sending  the  parties  to  a  court  of 
law  to  bring  an  ordinary  action  of  ejectment/® 

§301.     Accounting. 


Mere  delay  by  the  lessor  in  bringing  a  suit  against  the  lessee 
for  an  accounting  will  not  bar  a  recovers^,  if  the  action  is  not 
barred  by  the  Statute  of  Limitations ;  ^''  and  color  has  been  lent 
to  the  claim  that  even  the  Statute  of  Limitations  will  not  bar 
the  right  to  an  accounting.^^ 


15  Erskine  v.  Forest  Oil  Co.,  80 
Fed.    Rep.    583. 

16  California  Oil  and  Gas  Co.  v. 
Miller,  96  Fed.  Rep.  12. 

17  Ahrns  v.  Char  tiers  Valley  Gas 
Co.  188  Pa.  St.  249;  41  Atl.  Rep. 
739;  Akin  v.  Marshall  Oil  Co.,  188 
Pa.  St.  602 ;  41  Atl.  Rep.  748. 

18  Williams  v.  Short.  1.55  Pa.  St. 
480;  26  Atl.  Rep.  662.  A  widow  of 
a  partner,  where  a  managing  part- 


ner continues  to  manage  the  prop- 
erty after  the  death  of  his  co-part- 
ner is  not  barred,  as  a  rule,  by  the 
Statute  of  Limitations,  from  an  ac- 
counting. Thomas  v.  Hurst,  73 
Fed.  Rep.  372.  Secretly  extracting 
mineral  prevents  the  Statute  of 
Limitations  running  until  the  ex- 
tracting is  discovered.  Lewey  v.  H. 
C.  Frick  Co.,  166  Pa.  St.  5.36;  31 
Atl.  Rep.  261;   28  L.  R.  A.  283. 


CHAPTER  XIV. 

RESERVATION  AND  EXCEPTION. 

§302.  Distinction*  between  reservation  and  exception. 

§303.  Severance  of  mineral  by  reservation  or  exception. 

§304.  Reservation  of  "  all  minerals  "  includes  oil  and  gas. 

§305.  Reservation  of  right  to  drill  for  oil  restricted. 

§306.  Ownership  of  gas  or  oil  beneath  public  highways,  rivers  or  sea. 

§307.  Reservation  or  exception  subject  to  lien  of  judgment. 

§308.  Wife's  interest  in  reservation. —  Construction. 

§309.  Location  of  oil  claim  on  public  lands. 

§302.     Distinction  between  reservation  and  exception. 

The  distinction  between  a  reservation  and  an  exception  should 
be  borne  in  mind.  "  A  reservation  is  a  clause  in  a  deed  whereby 
the  grantor  doth  reserve  some  new  thing  to  himself  out  of  that 
whidi  he  granted  before.  This  doth  differ  from  an  exception, 
which  is  ever  a  part  of  the  thing  granted,  and  of  a  thing  in  esse 
at  the  time:  but  this  is  of  a  thing  newly  created,  or  reser^^ed 
out  of  a  thing  demised,  tliat  was  not  in  esse  before."  ^  "A 
reservation  isi  something  taken  from  the  whole  thing  covered  by 
the  general  terms  making  the  grant,  and  cuts  do^\m  and  lessens 
the  grant  from  Avhat  it  would  be  except  for  the  reservation."  " 
"  An  exception  is  something  reserved  by  the  grantor  out  of  that 
which  he  has  before  granted.  It  is  indispensable  to  a  good  ex- 
ception that  the  tiling  excepted  should  be  a  part  of  the  thing 
previously  granted,  and  not  of  any  other  thing."  ^  "  An  excep- 
tion is  always  a  part  of  the  thing  granted,  and  of  a  thing  in 
being;  and  a,  reseiwation  is  of  a  thing  not  in  being,  but  newly 

1  Craig   V.   Wells,    11   N.   Y.    315,       Parsell    v.    Stryker,   41    X.   Y.   480; 
quoting  Shep.  Touch  80.  Ryckman  v.  Gillis,  6  Lans.  p.  70. 

2  Miller  V.  Lapham,  44  Ct.  p.  434 ;  3  Case   v.    Haight.    3    Wend.    632; 

Darling  v.  Crowell,  6  N.  H.  421. 
328 


EESERVATION   AND   EXCEPTION.  329 

created  out  of  lands  and  tenements  demised ;  though  exception 
and  reservation  have  often  been  used  promiscuously."  * 

§303.     Severance  of  mineral  by  reservation   or  exception. 

A  reservation  or  exception  of  all  the  mineral  in  a  tract  con- 
veyed is  a  separation  of  the  estate  in  the  mineral  from  the 
estate  in  the  surface.  "  A  reservation  of  minerals  and  mining 
rights  is  construed  as  is  an  actual  grant  thereof."  "  A  reser- 
vation of  mineral  and  mining  rights  from  a  grant  of  tlie  estate, 
followed  by  a  grant  to  another  of  all  that  which  ivas  first  re- 
served, vests  in  the  second  grantee  an  estate  as  broad  as  if  the 
entire  estate  had  first  been  granted  to  him  with  a  reservation 
of  the  surface."  ^  Of  course,  what  is  true  of  a  reservation  is 
also  true  of  an  exception."  In  ease  of  either  a  reservation  or 
an  exception,  the  gTantor  has  a  right  to  enter  on  the  surface, 
with  all  the  usual  necessary  appliances,  to  remove  the  mineral, 
without  any  express  authority  reserved  to  that  effect.'  In  case 
of  a  reservation  of  minerals,  such  mineral  descends  to  the 
grantor's  heirs.^  A  reservation  as  large  as  the  gi'ant  itself  is 
void,  and  the  grant  is  valid. ^ 

§304.     Reservation  of  "  all  minerals  "  includes  oil  and  gas. 

A  clause  in  a  deed  of  conveyance  resei*ving  "  all  minerals  " 
has  been  held  not  to  include  jDetroleum,  and  by  analogy  not  to  in- 
clude natural  gas.^°     But  this  decision  has  been  greatly  shaken 

4  State  V.  Wilson,  42  Me.  9;  Cun-  St.  182;  Foster  v.  Runk,  109  Pa. 
ningham  v.  Knight,  1  Barb.  399;  St.  291;  Lillibridge  v.  Lackawanna 
Gould  V.  Glass,   19  Barb.   179.  Coal  Co.,   143  Pa.   St.  293;   22  Atl. 

5  Marvin  v.  Brewster,  etc.,  Co..  55  Rep.    1035. 

Ohio  St.  538;  Farnum  v.  Piatt,  8  7  Wardell  v.  Watson,  supra.  Will- 
Pick.  339;  :Munn  v.  Stone,  4  Cush.  iams  v.  Gibson,  84  Ala.  228;  4 
146;  Warden  v.  Watson,  93  Mo.  So.  Rep.  350;  Dietz  v.  Mission 
107;   5   S.   W.  Rep.   605.  Transfer    Co.    (Cal.),   25   Pac.   Rep. 

c  Snoddy  v.   Bolen,   122  Mo.  479 ;  423. 

24  S.  W\   Rep.  142;  25  S.  W.  Rep.  8  Whitaker   r.   Brown,  46  Pa.   St. 

932;  Norton  v.  Snyder,  2  Hun.    82;  197. 

Sloan  V.   Furnace   Co.,   29   Ohio   St.  o  Shoenberger     v.     Lyon,     supra; 

568 ;   Baker  v.  McDowell,  3  W.  and  Foster  v.  Runk,  supra. 

S.  358 ;   Shoenberger  v.   Lyon,  7  W.  lo  Dunham     v.    Kirkpatrick,     101 

and  S..  184;  Whitaker  v.  Brown,  46  Pa.  St.  36;  47  Am.  Rep.  696, 
Pa.  St.  197;  Alden's  Appeal,  93  Pa. 


330  OIL    AND    GAS. 

in  the  State  where  it  was  rendered,  bv  a  subsequent  decision 
holding  that  petroleum  is  a  mineral  substance  obtained  from 
the  earth  by  process  of  mining  and  lands  from  which  it  is  ob- 
tained may  be  designated  as  mineral  lands."  In  another  case 
in  another  State,  a  reservation  in  deed  of  conveyance  of  "  all 
mines,  minerals  and  metals  in  and  under  the  land  "  was  held 
to  include  petroleum.  "  The  first  question  to  be  determined," 
said  the  court,  "  is  whether  petroleum  oil  is  included  within 
the  language  of  reservation  of  '  mines,  minerals  and  metals.'  ^^ 
Clearly,  from  this  description  of  the  substance,  it 
could  not  in  any  sense  fall  under  the  terms  '  metal '  or  '  metal- 
lic' The  question,  .then,  to  be  determined  is,  does  it  fall 
within  the  term  '  mines  and  mineral '  ?  .  .  .  In  the  most 
general  sense  of  the  term,  minerals  are  those  parts  of  the  earth 
which  are  capable  of  being  got  from  underneath  the  surface 
for  the  purpose  of  profit.  The  term,  therefore,  includes  coal, 
metal,  ores  of  all  kinds,  clay,  stone,  slate  and  coprolites.  .  .  . 
The  term  is  not  limited  to  metallic  substances,  but  includes  salt, 
coal,  paint,  stone  and  similar  substances.  .  .  .  We  think, 
however,  that  the  true  meaning  of  tlie  word  ^  mineral,'  as  well 
as  its  meaning  among  the  bulk  of  mankind,  must  be  deterinined 
from  dictionaries  and  other  similar  authorities.  We  do  not 
think  that  the  bulk  of  mankind  could  be  regarded  as  holding 
that  the  word  '  mineral '  applied  only  to  metals."  After  re- 
viewing a  number  of  cases  from  other  States,  and  especially 
Pennsylvania,  the  court  concludes :  "  We  are  bound  to  hold 
that  i>etroleum  is  a  mineral  and  that  it  falls  within  the  terms 
of  the  reservation  in  the  deed.  .  .  .  The  same  is  true  of 
natural  gas."  ^^     In  Ohio,  however,  in  a  case  of  a  conveyance  of 

11  Gill     V.    Weston,    110     Pa.    St.  language  was  used  in  a   West  Vir- 

305;  1  Atl.  Rep.  921.  ginia    case    in    defining    petroleum. 

-*  12  Quoting   Century   Dictionary.  Williamson    v.    Jones,    39    W.    Va. 

13  Murray    v.   Allard,    100     Tenn.  231;    19   S.  E.   Rep.  436;   25  L.  R. 

100;  43  S.  W.  Rep.  355;  39  L.  R.  A.  A.  222. 

249;  66  Am.  St.  Rep.  740.  Under  a   railroad  grant  reserving 

In  an  early  Pennsylvania  case  it  minerals,    it    was    decided    that    pe- 

was  said  "  Oil  is  a  mineral,  and  be-  troleum    was    included.     Union    Oil 

ing   a  mineral,   is  part  of  tlie  real-  Co..  25  Land.  Dec.  351. 

ty."     Funk  v.  Haldeman,  53  Pa.  St.  The  United  States  land  laws  pro- 

229,      249.     Practically      the     same  vide   that   "  Any   person   authorized 


RESERVATlOISr    AND   EXCEPTION. 


331 


"  all  the  coal  of  every  variety,  and  all  the  iron  ore,  fire  clay,  and 
other  valuable  minerals,"  in  and  under  a  certain  described  tract, 
giving  the  grantee  in  perpetuity  the  right  "  of  mining  and  re- 
moving such  coal,  ore,  or  other  minerals  "  and  "  right  to  the 
use  of  so  much  of  the  surface  of  the  land  as  may  be  necessary 
for  pits,  shafts,  platforms,  drains,  railroads,  switches,  side 
tracks,  etc.,  to  facilitate  the  mining  and  removal  of  such  coal, 
ore,  or  other  minerals,  and  no  more,"  it  was  held  that  the  deed 
did  not  pass  the  title  to  the  petroleum  oil  and  natural  gas  in 
such  lands.  "  The  words  '  other  minerals,'  or  '  other  valuable 
minerals,'  taken  in  their  broadest  sense,  would  include  petro- 
leum oil ;  but  the  question  here  is,  did  the  parties  intend  to  in- 
clude such  oil  in  the  mining  right  ?  Taking  all  the  terms  of  the 
conveyance  in  the  light  of  the  surrounding  circumstances,  and  in 
view  of  the  above  rule  of  construction, ^^  and  upon  the  authority 
of  the  case  of  Dunham  against  Ivirkpatrick,^^  we  conclude  that 
the  title  to  the  oil  did  not  pass  under  said  conveyance,  but  re- 
mained in  the  owner  of  the  soil,  and  upon  his  death  passed  to 


to  enter  lands  under  the  mining 
laws  of  the  United  States  may  en- 
ter or  obtain  patent  to  lands  con- 
taining petroleum  or  other  mineral 
oil,  and  chiefly  valuable  therefore, 
under  the  provisions  of  the  laws  re- 
lating to  placer  and  mineral 
claims."  Act  approved  Feb.  11, 
1897,  29  Stat,  at  Large  526;  2 
Supp.  R.  S.  U.  S.  549. 

The  Supreme  Court  of  the  United 
States  has  held  that  salt  is  not  a 
mineral,  within  the  meaning  of  the 
mineral  statutes,  but  in  so  doing  it 
calls  attention  to  the  well  known 
practice  of  the  government  in  re- 
serving salt  springs  from  sale.  Mor- 
ton V.  Nebraska,  21  Wall.  660.  A 
recent  act  of  Congress  classes 
saline  lands  as  mineral  lands  and 
locatable  as  placer.  Act  of  Janu- 
ary 31.  1901,  21  Stat,  at  Large 
145.  In  Texas  the  opposite  is  held. 
State  V.  Parker,  61  Tex.  265. 


11  Referring  to  Barringer  and 
Adams  on  the  Law  of  Mines  and 
Mining,  p.  131,  where  it  is  said: 
"  In  determining  what  is  included 
in  a  lease,  the  familiar  rules  of 
construction  are  applied.  The  grant 
is  construed  most  strongly  against 
the  grantor.  The  whole  contract 
must  be  considered  in  arriving  at 
the  meaning  of  any  of  its  parts. 
Terms  are  to  be  understood  in  tlieir 
plain,  ordinary,  and  popular  sense, 
unless  they  have  acquired  a  par- 
ticular technical  sense  by  the 
known  usage  of  trade.  They  are  to 
be  construed  with  reference  to  their 
commercial  and  their  scientific  im- 
port. This  rule  is  of  especial  im- 
portance when  the  question  arises 
whether  a  specific  mineral  is  in- 
eluded  in  a  gereral  designation." 

15  101  Pa.  St.  36. 


332  OIL    A^•D    GAS. 

his  heirs.  There  is  nothing  to  show  that  it  was  the  intention  of 
the  parties  that  oil  should  be  included  in  the  word  '  minerals/ 
and  the  easements  granted,  in  connection  with  tlie  mining  right, 
are  not  applicable  to  producing  oil  ^^  and  show  that  oil  was  not 
intended  to  be  included  in  the  conveyance.  If  it  had  been,  apt 
words  would  have  been  used  to  exp'ress  such  intention."  ^^  Where 
a  contract  was  to  convey  the  land  but  reserving  all  oil  and  gas 
in  or  under  the  said  lands,  with  free  mining  privileges  of  all 
kinds,  it  was  held  that  a  deed  of  conveyance  containing  a  clause 
"  excepting  and  reserving  all  gas,  oil,  cx3al,  ores  and  other  min- 
eral deposits  in,  under  or  on  the  said  premises,"  was  not  a 
compliance  with  the  contract;  for  by  the  contract  the  agreement 
was  to  convey  the  "  coal,  ores  and  other  mineral  deposits,"  as 
distinguished  from  "  gas  and  oil."  ^^ 
§305.     Reservation  of  right  to  drill  for  oil  restricted. 

Under  a  reservation  of  a  right  to  drill  for  oil  or  gas,  the 
grant^or,  his  heirs  or  assigns  have  a  right  to  drill  wells  to 
prospect,  for  oil  or  gas,  even  though  there  is  no  surface  indica- 
tion of  either  of  them ;  but  the  lands  cannot  be  used  for  the 
development  of  otJier  lands,  nor  machinery  used  on  other  lands 
be  stored  on  it,  nor  oil  taken  from  other  lands  be  stored  on 
or  transported  over  it.^^ 

§306.     Ownership  of  gas  or  oil  beneath  public  highways,  rivers 
or  sea. 

If  the  public  own  the  fee  in  a  public  highway,  then  it  may 
take  all  mineral  beneath  the  surface  of  such  highway,  as  in  an 

16  "  Nothing  is  said  about  der-  minerals  in  common  use,  and  com- 
ricks,  pipe  lines,  tanks,  the  use  of  monly  known  as  such/'  does  not 
water  for  drilling,  or  the  removal  of  cover  marble,  serpentine,  or  other 
machinery  used  in  drilling  or  oper-  building  material,  which,  at  the 
ating  oil  or  gas  wells."  time  the  reservation  was  made,  was 

17  Detlor  V.  Holland,  57  Ohio  St.  not  known  to  exist  in  the  country. 
492  f  49  K  E.  Rep.  690;  40  L.  R.  A.  Deer  Lake  Co.  v.  Michigan,  etc.,  Co., 
266.  89  Mich.  180;  50  N.  W.  Rep.  807. 

A  reservation  of  "  all   mines  and  is  Moody    v.    Alexander,    145    Pa. 

ores  of  metal  that  are  or  may  here-  St.  571;   23  Atl.  Rep.   161. 

after   be    found   on   the   said   lands,  i"  Dietz  v.   Mission   Transfer   Co., 

with  the  right  .  .  .  to  mine  and  carry  95  Cal.  92;  30  Pac.  Rep.  380;  Dietz 

away   the   mineral   thereon,"   covers  v.  Mission  Transfer  Co.    (Cal.),   25 

only  "  mines  and  ores  of  metal  and  Pac.  Rep.  423, 


KESERVATION   AND   EXCEPTION. 


333 


instance  of  coal,"*'  or  of  petroleum.'^  If  the  public  highway 
or  street  be  abandoned,  tlie  fee,  being  a  base  fee,  reverts  to  the 
person  who  dedicated  it,  in  case  of  a  dedication,-^  or  if  taken 
bj  right  of  eminent  domain,  to  the  abutting  property  owners, 
but  such  abutting  lot  owner  cannot  take  the  mineral  from 
beneath  the  highway  so  long  as  it  remains  a  public  one."*  In 
the  Missouri  case  just  cited  it  was  said :  "  The  street  having 
been  dedicated  to  p'ublic  use  as  a  tlioroughfare,  no  private  party 
(not  even  the  city  itself)  had  any  authority  or  right  to  use  it 
for  any  other  purpose."  ~'^  If  the  public  have  a  mere  easement, 
then  the  abutting  land  owner  owns  the  minerals  beneath  the 
highway ;  '^  and  the  same  is  true  where  the  public  acquire  only 
an  easement  by  the  right  of  eminent  domain."^  Yet  it  would  seem 
that  the  owner  of  mineral  beneath  a  highway  may  remove  it, 
if  he  can  do  so  without,  interfering  with  the  public  in  the  use 
of  such  highway."^  But  this  is  a  rule  of  little  if  any  practical 
value  in  cases  of  oil  and  gas.  For  an  oil  or  gas  well  must 
necessarily  be  an  obstruction  of  the  highway  when  sunk  in  it. 


20  [Tnion  Coal  Co.  vs.  City  of  La 
Salle,  136  111.  119;  26  N.  E.  Rep. 
506;  12  L.  R.  A.  326,  an  action  to 
recover  damages  brought  by  a  city 
against  one  taking  the  coal  from 
beneath  a  street  of  the  city.  Des 
Moines  v.  Hall,  24  la.  234;  Hawes- 
ville  V.  Hawes,  6  Bush.  232. 

21  Ontario  Natural  Gas  Co.  v. 
Gasfield,  18  Ontario  App.  626. 

23  Matthiesson,  etc.,  Co.  v.  La 
Salle.  117  111.  411;  2  N.  E.  Rep. 
406;  8  N.  E.  Rep.  81. 

24  Matthiesson,  etc.,  Co.  v.  La 
Salle,  supra;  Friend  v.  Porter,  ,50 
Mo.  App.  89. 

2r.  In  Union  Coal  Co.  v.  City  of 
La  Salle,  supra,  the  court  declined 
to  pass  on  the  right  of  the  city  to 
sell  the  coal  beneath  the  street.  In 
Ontario  Natural  Gas  Co.  v.  Gos- 
field,  supra,  a  statvite  authorized  a 
township  to  sell  or  lease  the  gas  or 
oil  beneath  the  surface  of  any  pub- 
lic  highway. 


20  Tousley  v.  Galena,  etc.,  Co.,  24 
T^an.  328;  Smith  v.  Rome,  19 
Ga.  89. 

27  Smith  V.  Holloway,  124  Ind. 
329;  24  N.  E.  Rep.  886;  Kelly  v. 
Donahoe,  2  Mete.  (Ky.)  482;  Evans 
V.  Haefner,  29  Mo.  141;  Goodtitle 
v.  Alker.  1  Burr.  143;  Holmes  v. 
Bellingham.  7  C.  B.  (N.  S.)  329; 
Berridge  v.  Ward,  10  C.  B.  (N.  S.) 
400;  30  L.  J.  C.  P.  218;  7  Jur.  (N. 
S.)  876;  2  F.  and  F.  208;  Lyman 
V.  iVrnold,  5  Mason  195;  Fisher  v. 
Rochester.  6  Lans.  225;  Robert  v. 
Sadler,  104  N.  Y.  229;  10  N.  E. 
Rep.  428. 

28  Robert  v.  Sadler,  supra;  Perley 
V.  Chandler,  6  Mass.  453 ;  Old  Town 
v.  Dooley,  81  111.  255;  Winchester  v. 
Capron,  63  N.  H.  605;  Williams  v. 
Kenney,  14  Barb.  629.  But  of  this 
the  laws  are  conflicting  as  can  be 
seen  in  citation  24. 


334  OIL    AND    GAS. 

and  especially  tlie  maeliinei";)'  used  in  sinlving  and  operating 
it ;  ""  and,  therefore,  it  is  practically  impossible  to  make  use  of 
a  highway  in  order  to  extract  the  oil  or  gas  beneath  its  sur- 
face. As  the  public  authorities  only  have  the  right  to  use  the 
highway  for  the  pur^wses  of  the  public  in  traveling,  they  have 
no  power  to  let  any  part  of  it  for  oil  or  gas  operations,  unless 
especially  authorized  by  a  statute  to  do  so,  and  then  only  when 
the  public  owai  the  fee.  The  owner  of  land  dedicating  it  to  the 
public  for  a  highway  may  reserve  the  mineral  beneath  its  sur- 
face;  and  in  such  an  instance  he  may  remove  it;  ^°  and  if  he 
convey  tlie  abutting  property,  his  grantee  is  the  owner  of  the 
mineral.^^  Mineral  beneath  a  navigable  river  or  tlie  sea  be- 
longs to  the  State. ■^' 

§307.     Reservation  or  exception  subject  to  lien  of  judgment. 

A  reservation  or  exception  of  the  gas  or  oil,  or  other  mineral, 
beneath  the  surface  of  a  tract  of  land  conveyed  is  subject  to  a 
lien  of  a  judgment  taken  against  the  grantor  after  tlie  convey- 
ance containing  the  reservation  or  exceptioi|  has  been  made."'^ 

§308.     Wife's  interest  in  reservation  —  construction. 

Husband  and  wife  conveyed  by  deed  certain  real  estate  in  fee 
simple,  reserving  to  tliemselves  the  equal  one-half  part  of  the 
usual  royalty  of  one-eighth  of  all  the  oil  underlying  the  tract 
conveyed.  In  the  deed  it  was  expressly  stated  that  they  did 
not  convey  thereby  such  one-eighth  of  the  oil.     The  grantee  of 

29  state  V.  Berdetta,  73  Ind.  185;  In  Ventura  County,  California, 
38  Am.  Rep.  117;  20  Amer.  L.  Reg.  many  oil  wells  have  been  drilled  in 
342.  tlie  ocean,  some  as  far  as  two  hun- 

30  Dubuque  v.  Benson,  23  Iowa  dred  yards  from  the  shore.  In  the 
248.'*'  Gulf  of  Mexico,  off  the  Texas  coast 

31  Tousley  v.  Galena,  etc.,  Co..  24  many  miles,  it  is  said  that  oil  float- 
Kan.  328;  Snoddy  v.  Bolen,  122  Mo.  ing  on  the  water  can  be  readily  dis- 
479;  25  S.  W.  Rep.  932.  cerned. 

32  2    Bl.    Com.    p.    18.     See    Pitts-  33  First  National  Bank  v.  Dow,  41 
burgh,    etc.,    Co.    v.    Lake    Superior  Hun.    13.     See    Tliompson    v.    Mat- 
Iron  Co.,   118  Mich.   109;   7C  N.  W.  tern,  115  Pa.  St.  501 ;  9  Atl.  Rep.  70. 
Rep.  395. 


EESERVATIOA^S    AND    EXCEPTIOlSrS. 


335 


the  tract  of  land  aftenvards  leased  it  witli  tlie  exclusive  right 
tO'  drill  and  operate  for  oil  and  gas,  reserving  one-eighth  part 
of  all  the  oil  obtained  from  the  premises  as  produced  in  the 
crude  state.  It  was  held  that  the  reservation  in  the  lease 
vested  in  the  lessor  one-eighth  of  the  oil,  but  did  not  include  the 
one-eighth  which  was  outstanding  in  the  wife  of  the  original 
grantor.^* 

§309.     Location  of  oil  claim  on  public  lands. 

Lands  of  the  United  States  containing  oil  is  subject  to  loca- 
tion the  same  as  any  other  mineral  land.^^  To  render  the  land 
subject  to  location  under  the  mining  laws,  the  locator  must 
know  that  oil  exists  on  the  land,  the  fact  that  surface  indica- 
tions were  such  as  to  point  to  tlie  fact  that  oil  might  exist  not 
being  sufficient,  or  a  mere  conclusion,  drawn  from  other  facts, 
that  it  does  exist  is  not  a  sufficient  discovery.  ISTor  is  it  suffi- 
cient that  oil  is  known  to  exist  in  a  nearby  territory ;  or  that 
another  person  other  than  the  locator  knows  it  exists;  but  the 
locator  may  so  acquire  his  knowledge  of  the  existence  of  oil,  and 
so  step  into  his  shoes,  as  it  were,  as  to  render  his  title  by  loca- 
tion valid.  ^"^ 


34  Harris  v.  Cobb,  49  W.  Va.  350; 
38  S.  E.  Rep.  559. 

35  Act  of  February  11.  1897,  29 
Stat,  at  Large  526;  2  Siipp.  R.  S. 
U.  S.  549. 

3c  Nevada  Sierra  Oil  Co.  v.  Home 
Oil  Co.,  98  FeJ.  Rep.  673;  Nevada 
Sierra  Oil  Co.  v.  Miller  97  Fed. 
Rep.  681;  Gird  v.  California  Oil 
Co.,  60  Fed.  Rep.  531;  Olive  Land, 
etc.,  Co.  v.  Olmstead,  103  Fed.  Rep. 
568;  Cosmos,  etc.,  Co.  v.  Gray- 
Eagle  Oil  Co.,  104  Fed.  Rep.  20. 


For  cases  of  solid  mineral,  on 
this  point,  see  Dower  v.  Richards, 
151  U.  S.  658;  14  Sup.  Ct.  Rep. 
452;  McCormick  v.  Sutton,  97  Cal. 
373;  32  Pac.  Rep.  444;  Francoeur 
V.  Newhouse,  43  Fed.  Rep.  236; 
Northern  Pacific  Ry.  v.  Walker,  47 
Fed.  Rep.  681;  Schendell  v.  Rogan, 
94  Tex.  585;  63  S.  W.  Rep.  1001; 
McShane  v.  Kenkle,  18  Mont.  208; 
44  Pac.  Rep.  979;   33  L.  R.  A.  851. 


CHAPTER  XV. 

PARTNERSHIPS. 

§310.  Mining  partnerships  applicable  to  gas  and  oil  operations. 

§311.  Tenants  in  common  not  partners. 

§312.  By    agreement   a    mining   association   becoming   an    ordinary    part- 
nership. 

§313.  Mining  agreements   that  create  ordinary  partnerships. 

§314.  Working  a  mine  together  creates  a  mining  partnership. 

§315.  Selection  of  a  partner. —  Sale  of  interest. 

§316.  Tenants  in  common  usually  do  not  become  partners. 

§317.  Illustration  of  what  makes  a  mining  partnership. 

§318.  Promoters. —  Prospectors. 

§319.  Life  of  mining  partnership. —  Dissolution. 

§320.  Partition  and  accounting  works  a  dissolution. 

§321.  Majority  control. 

§322.  Power  of  partner  in  mining  or  oil  enterprise. 

§323.  Partner's  lien. 

§324.  Liability  of  incoming  partner. 

§325.  Each  partner  liable  for  all  partnership  debts. 

§326.  Limited  partnerships. 

§310.     Minings  partnerships  applicable  to  gas  and  oil  operations. 

A  mining  partnership  in  man}'  things  is  radically  different 
from  an  ordinary  partnership.  As  this  kind  of  a  partnership 
has  been  expressly  held  applicable  to  oil  or  gas  adventures/ 
although,  not  recognized  in  Pennsylvania,*^  it  will  be  necessary 
m  this  connection  to  discuss  the  niles  of  law  applicable  to  them 
generally.  In  discussing  the  law  with  reference  to  mining  part- 
nerships, the  subject  must  be  approached,  as  it  were,  from  two 
direflions :  One  where  joint  owners  of  gas  or  oil  lands  operate 
them  in  order  to  extract  gas  or  oil ;  and,  second,  where  two  or 
more  jointly  accept  a  lease  of  oil  lands,  or  become  jointly  in- 

iChilders  v.  Neeley,  47  W.  Va.  70;       borne,  159  Pa.  St.  10;  28  Atl.  Rep. 
34  S.  E.  Rep.  828;  49  L.  R.  A.  468.       163. 
*  1  Butler    Savings    Bank    v.    Os- 

336 


PARTXEKSIIIPS.  337 

terested  in  one,  and  oi)erate  the  lands  leased  with  a  view  to 
extract  the  gas  or  oil. 

§311.     Tenants  in  common  not  partners. 

As  between  themselves,  co-tenants  are  not  partners,  whatever 
they  may  be  to  the  outside  world.  A  standard  authority  has 
made  this  comparison  between  co-ownership  and  co-partnership : 
"  Speaking  generally,  and  excluding  all  exceptional  cases,  the 
principal  difference  between  co-o^vnership  and  partnership  may 
be  stated  as  follows:  (1)  Co-ownership  is  not  necessarily  the 
result  of  agreement.  Partnership  is.  (2)  Co-ownership  does 
not  necessarily  involve  community  of  profit  or  loss.  Partner- 
ship does.  (3)  One  co-owner  can,  without  the  consent  of  the 
others,  transfer  his  interest  to  a  stranger,  so^as  to  put  him  in 
the  same  position  as  regards  the  other  o^^mers  as  the  transferer 
himself  was  before  the  transfer.  A  partner  cannot  do  this. 
(4)  One  co-owner  is  not  as  such  the  agent  real  or  implied  of 
the  others.  The  partner  is.  (5)  One  co-owner  has  no  lien  on 
the  thing  owned  in  common  for  outlays  or  expenses,  nor  for 
what  may  be  due  from  the  others  as  their  share  of  a  common 
debt.  A  partner  has.  (6)  One  co-o\vner  of  land  is  entitled 
to  have  it  divided  betw^een  himself  and  co-OAvners,  but  not  to 
have  it  sold  against  their  consent.  A  partner  has  no  right  to 
partition  in  specie,  but  is  entitled,  on  a  dissolution,  to  have 
the  partnership  property,  whether  land  or  not,  sold  and  the 
proceeds  divided.  (7)  As  between  the  real  and  personal  rep- 
resentatives of  a  deceased  co-owner  of  freehold  land,  tlie  equita- 
ble as  well  as  the  legal  interest  in  his  share  is  real  estate ;  whilst 
as  between  the  real  and  personal  representatives  of  a  deceased 
partner  the  equitable  interest  in  his  share  of  partnership  free- 
hold p.roperty  is  treated  as  personal  estate,  although  the  legal 
interest  in  it  is  real  estate.  (8)  Co-ownership  not  necessarily 
existing,  for  the  sake  of  gain,  and  partnership  existing  for  no 
other  purpose,  the  remedies  by  way  of  account  and  otlierwise 
which  one  co-owner  has  against  the  others,  are  in  many  impor- 
tant respects  different  and  less  expensive  than  those  which  one 
partner  has  against  his  co-partners."  ^ 

-  Lindley   on   Partnership   58. 


338  OIL    AND    GAS. 

§312.     By  agreement  a  mining  association  becoming  an  ordinary 
partnership. 

By  agreement  the  owners  of  a  mine  or  of  mining  lands,  or 
the  owners  of  a  lease  of  a  mine  or  mining  lands,  may  become 
partners  in  tlie  ordinary  sense  of  the  term,  not  only  as  to  them- 
selves but  as  to  strangers.  The  conduct  of  the  parties  may  be 
such  as  to  create  such  a  partnership.  Thus  where  certain  min- 
eral land  had  been  held  in  co-ownership,  and  large  quantities 
of  iron  ore  had  been  extracted  from  the  mines  upon  it ;  and 
extensive  iron  works  had  been  erected  by  the  owners  of  the  land 
upon  it,  which  were  conducted  as  a  trading  concern,  not  only  in 
the  product  of  the  mines,  but  of  foreign  iron  and  iron  ore, 
manufactured  at  the  works ;  it  was  held  that  the  owners 
were  a  trading  concern  and  an  ordinary  partnership.*^  The 
terms  of  the  agreement  may  be  varied  from  time  tO'  time  by 
the  conduct  of  the  parties.^  Such  a.  partnership  is  governed 
by  tlie  ordinary  incidents  of  a  partnership.  There  is  nothing 
in  the  mining  business  to  forbid  the  creation  of  such  a  part- 
nership. The  confidential  relations  of  an  ordinary  partner- 
ship, exist  between  the  partners;  and  the  Avithdrawal  of  one 
partner  dissolves  the  partnership-.  The  partners  are  strictly 
partners ;  not  because  of  their  common  ownership  of  the  mine, 
but  as  a  result  of  their  own  agreement.*  "  Tenants  in  com- 
mon," said  the  Supreme  Court  of  Illinois,  "  or  joint  tenants  of 
a  mine  or  quarry  may  or  may  not  be  partners,  and  the  mine  or 
quarry  itself  may  or  may  not  be  a  part  of  the  common  stock. 
But  it  is  highly  inconvenient,  if  not  altogether  impossible,  for 
co-owners  of  a  mine  or  quariy  to  work  it  themselves  without 
becoming  partners,  at  least  in  the  profits  of  the  mine ;  and 
persons  who  work  a  mine  or  quarry  in  common  are  regarded 
ratber  as  partners  in  trade  than  as  mere  tenants  in  common  of 

"•^Crawshay  v.   ]\Iaule,    1    Swanst  son    4    Colo.    567;    State    National 

521;  1  Wils.  181;  Bradley  v.  Hark-  Bank  v.  Butler,  149  111.  575;   36  N. 

ness,  26  Cal.  69.  E.    Rep.    1000;    Judge   v.    Braswell, 

3  Smith   V.   Jeyes,  4   Beav.   50.3.  1.3    Bush.    69;    26    Am.    Rep.     185; 

4  Decker  v.  Howell,  42   Cal.  636;  Burgan  v.  Lyell,  2  Mich.  102;   Jef- 
Stuart  V.   Adams,   89   Cal.   367 ;    26  frey  v.  Smith,  1  Jac.  and  W.  298. 
Pac.  Rep.   970;   Lawrence  v.   Robin- 


PARTNERSHIPS.  339 

land.  The  co-owners  of  mines  may  be  partners,  not  only  in  t)ie 
profits,  but  also  in  the  mines  themselves.  The  co-owners  are 
then  partners  to  all  purposes,  and  their  mutual  rights  and  obli- 
gations are  determined  l>y  the  law  of  partnership  as  distinct 
from  the  law  of  co-ownership."  ^ 

§313.     Mining  agreements  that  create  ordinary  partnerships. 

If  two  or  more  persons^  agree  to  engage  in  a  mining  adven- 
ture, to  purchase  a  mine  and  share  the  gains  and  profits  equally, 
they  are  ordinary  trading  partners.  In  such  an  instance  each 
exercises  his  choice  in  selecting  co-partners ;  and  if  any  one 
sells  out  his  interest,  the  partnership  is  dissolved,  the  purchaser 
and  remaining  partners  becoming  tenants  in  common  of  the 
mine  and  its  working,  subject  to  the  rules  applicable  to  mining 
partnerships. °  A.,  the  owner  of  a  coal  mine,  entered  into  an 
agreement  with  B.  as  follows :  ( 1 )  A.  was  to  have  a  royalty  on 
ever^^  bushel  of  coal  hoisted  and  sold,  to  be  paid  before  any- 
thing else  was  paid,  at  the  end  of  each  month;  (2)  A.  to  have 
all  control  of  the  mine  and  the  workings  connected  with  it;  (3) 
settlements  to  be  made  each  month  and  profits  divided  or  losses 
to  be  paid,  one-fourth  to  or  by  B.,  the  remainder  to  or  by  A. ; 
(4)  A.  was  to  have  an  option  on  B.'s  interest,  if  he  desired  to 
sell ;  (5)  if  at  any  time  it  should  be  considered  by  the  parties  ad- 
visable to  connect  tile  works  with  the  mines,  the  expense  of  doing 
so  to  be  in  the  proportion  of  one  to  three,  the  profits  or  losses 
therefrom  to  be  divided  on  the  same  basis.  As  to  third  parties 
who  gave  credit  to  the  firm  with  notice  of  the  agreement,  A.  and 
B.  were  held  to  be  partners.^  Where  the  own^r  of  a  mining- 
right  agreed  with  owner  of  a  mill  for  the  reduction  of  ores  that 
if  the  latter  would  reduce  the  ores  taken  out  of  the  mining  right, 
a  certain  projDortion  should  vest  in  such  mill  o^vner  and  both 

estate   National   Bank  v.  Butler,  Quinn  v.  Quiim,  81  Cal.  14;  22  Pac. 

149   111.   575;   36  N.   E.   Rep.   1000;  Eep.  264;   Lawrence  v.  Robinson,  4 

Snyder    v.    Burnham,    77    Mo.    52;  Colo.  567. 

Smith  V.  Jeyes.  4  Beav.  503 ;   Free-  7  State   National   Bank  v.  Butler, 

man   v.    Mememway,    75    Mo.    App.  149   111.   575;    36   N.   E.   Rep.   1000, 

€11.  reversing  48  111.  App.  648. 

6  Decker  v.  Howell,   42   Cal.   636; 


340  OIL    ANB    OAS, 

Should  bear  the  costs  of  the  expense  of  mining,  melting  and 
shipping,  each  to  bear  a  certain  proportion,  the  profits  of  the 
enterprise  to  be  shared  between  them  —  it  was  held  that  the 
agreement  constituted  them  partners.^ 

§314.     Working  a  mine  together  creates  a  mining  partnership. 

If  two  or  more  owners  of  a  mine  unite  in  working  it,  witliout 
anj  partnership  agreement,  the  act  of  working  it  together 
creates  a  mining  pai-tnership ;  and  the  same  is  true  of  two  or 
inore  liolding  interests  in  a  lease  of  mining  property.  "  Wliat- 
ever  may  be  the  rights  and  liabilities,"  of  tenants  in  common 
of  a  mine  not  being  worked,  said  the  Supreme  Court  of  Cali- 
fornia, "  it  is  clear  that  when  the  several  owners  unite  and  co- 
operate in  working  the  mine,  then  a,  new  relation  exists  between 
them,  and,  to  a  certain  extent,  they  are  governed  by  the  rules 
relating  to  partnership.  They  form  what  is  termed  a  mining 
partnership,  which  is  governed  by  many  of  the  rules  relating  to 
ordinary  partnerships,  but  which  has  also  some  rules  peculiar 
to  itself,  one  of  which  is  that  one  person  may  convey  his  interest 
in  a  mine  and  business  without  dissolving  the  partnership. 
Still  there  may  be  a  partnership  in  the  working  of  a  mine,  sub- 
ject to  the  rules  relating  to  an  ordinary  partnership  in  trade. 
And  this  relation  may  be  constituted  either  by  express  stipula- 
tion or  by  implication  deduced  from  the  acts  of  the  parties. 
But  in  case  of  an  ordinary  mining  partnership,  something  more 
will  be  required  to  raise  the  presumption  of  liability  arising 
from  persons  holding  themselves  out  to  the  world  as  partners, 
than  would  be  necessary  in  the  case  of  an  ordinary  partuer- 
fchip."  ' 

.  8  Ashenfelter  v.  Williams,  7  Colo.  Charles  v.  Eshleman,   5   Colo.   107; 

App.   332;   43  Pac.  Rep.   664;    Con-  Manville   v.   Parks,   7    Colo.    128;    2 

tra  'fietti  v.  Nesbitt,  22  Nev.   390;  Pac.  Rep.  212;  Hawkins  v.  Spokan, 

41  Pac.  Rep.    151.  etc.,  Co.,  2  Idaho  970;  28  Pac.  Rep. 

sSkillman    v.    Lachman,    23    Cal.  4.'^3 ;  Nolan  v.  Lovelock,  1   Mont.  224; 

109;  Kahn  v.  Central  Smelting  Co.,  Anaconda,   etc.,    Co.    v.    Butte,   etc., 

102  U.  S.  641;  Bissell  V.  Foss,  lUU.  Co.,    17    Mont.    519;    43    Pac.    Rep. 

S.  252;  5  Sup.  Ct.  Rep.  851,  affirm-  924;    Randall   v.   Merideth,   76   Tex. 

ing  4  Fed.  Rep.  694;  2  McCrary,  73;  669;    13  S.  W.  Rep.  576. 


PARTXEESIIIPS.  341 

§315.     Selection  of  a  partner.—  Sale  of  interest. 

It  is  a  cardinal  rule  of  all  ordinar)^  partnershipsi  that  one 
about  to  engage  in  a  partnership  enterprise  has  the  right  to 
select  his  partners ;  in  such  a  partnership  the  delectus  personae 
has  a  part.  But  such  is  not  the  case  in  a  mining  partnership.  In 
an  ordinary  partnership,  if  a  new  partner  has  been  introduced, 
the  old  partnership  is  dissolved  as  to  all  the  partners,  where 
there  is  no  agreement  that  it  shall  be  continued.^''  The  convey- 
ance of  one  partner  of  his  interest  to  a  stranger  works  a  disso- 
lution of  the  partnership.  But  such  is  not  the  case  with  a  min- 
ing partnership!,  for  a  member  of  it  may  convey  his  interest  to 
a  stranger  without  dissolving  the  partnership,  and  the  purchaser 
will  become  a  partner  in  the  enterprise,  as  much  so  as  his 
vendor.^^  After  referring  to  the  case  just  cited.  Justice  Field 
of  the  Supreme  Court  of  the  United  States,  said :  "  This  case 
settles  two  propositions:  first,  that  the  members  of  a  mining 
association  have  no  right  to  object  to  the  admission  of  a  stranger 
into  the  association  who  buys  the  share  of  one  of  the  associates ; 
and,  second,  that  the  sale  and  assignment  by  one  of  the  asso- 
ciates of  his  interest  does  not  dissolve  the  mining  partnership. 
It  follows  from  these  propositions,  that  one  member  of  a  min- 
ing partnership  has  the  right,  without,  consulting  his  associates, 
to  sell  his  interest  in  the  partnership  to  a  stranger,  and  that  such 
a  sale  injures  no  right  of  property  of  the  other  associates.  Much 
less  does  a  purchase  by  one  associate  of  the  share  of  another  in- 
flict any  wrong  upon  the  other  members  of  the  partnership. 
There  is  no  relation  of  trust  or  confidence  between  mining  mem- 
bers which  is  violated  by  the  sale  and  assignment  by  one  partner 
to  a  stranger,  or  to  one  of  the  associates  of  his  share  in  the 
property  of  the  association."  ^-     Therefore,  the  death  of  one  of 

Tlie  law  with  reference  to  mining  291 ;    Morss    v.    Gleason,    64    N.    Y. 

partnerships    has    been    codified    in  204. 

some  States,  as  in  California.     Civil  n  Kahn  v.   Central   Smelting  Co., 

Code  1885.     Sees.  2511-2520;  Idaho,  102  U.   S.  641. 

Rev.    Stat.    Sees.    3301-3309;    Mon-  isBissell  v.  Foss,  114  U.  S.  252,  5 

tana.     Civil  Code   1895,  Sees.  3350-  Sup.  Ct.  Rep.  851,  affirming  4  Fed. 

3359.  Rep.    694,    2    McCrary,    73,     Santa 

10  Heath  v.  Sanson,  2  B.  and  Ad.  Clara,     etc.,     Assn.     v.     Quicksilver 


342  OIL    AND    GAS. 

the  partners  does  not  dissolve  the  partnership;  his  heirs  snc- 
ceeding  to  his  rights  and  place  the  same  as  a  vendee  of  tlie  in- 
terest, although  they  take  no  part  in  the  management  of  partner- 
ship affairs,  and  do  not  hold  themselves  out  as  partners/^ 

§316.     Tenants  in  common  usually  do  not  become  partners. 

There  is  no  presumption  where  tenants  in  common  work 
mines  or  mining  territory  together  (and  the  same  is  true  of  oil 
territory)  that  they  have  created  an  ordinary  co-partnership, 
either  by  their  acts  or  by  an  agreement.  If  the  course  of  deal- 
ings among  co-tenants  is  naturally  referable  to  the  relation 
already  existing  among  them,  they,  in  the  working  of  the  mine 
or  development  of  the  mining  territory,  will  be  considered  as 
co-tenants  rather  than  partners,^*  Thus  where  two  joint  owners 
of  a  lease  of  oil  lands  agree  to  carr}^  on  operations  upon  such 
land,  each  contributing  a  proportionate  share  of  the  expenses, 
they  are  not  only  between  themselves  not  partners,  but  are  not 
so  as  -to  third  parties.  They  are  simply  working  their  own 
shares,  responsible  for  their  ovni  acts,  and  are  not  subject  to 
the  laws  of  partnership.^^  In  the  distribution  of  proceeds  of  an 
oil  or  mining  adventure  in  the  hands  of  a  receiver,  derived  from 
an  oil  lease  in  the  hands  of  tenants  in  common,  they  will  be 
deemed  such  tenants,  and  no  preference  will  be  given  creditors 
of  the  enterprise  over  individual  creditors  of  either  tenant, 
unless  there  was  a  partnership  in  fact,  or  by  holding  out.^"     And 

Mining  Co.,   17  Fed.  Rep.  657;   Set-  Walker  v.  Tupper,  152  Pa.  St.  1;  25 

terabre  v.  Putnam,  30  Cal.  490;  Mc-  All.   Rep.    172;    Brown   v.   Jaquette, 

Connell    v.    Denver,    35    Cal.    365;  94  Pa.  St.  113;  Neill  v.  Shamburg, 

Jones  V.  Clark,  42  Cal.   180;   Smith  158  Pa.  St.  263;   27  Atl.  Rep.  992; 

V.   Cooley,  65  Cal.   46;   2  Pac.  Rep.  Taylor  v.  Fried,  161   Pa.  St.  53;  28 

880;    Chung   Kee   v.   Davidson.    102  Atl.    Rep.    993.        See    Chiklers    v. 

Cal.    188;    .36   Pac.   Rep.    519;    Hig-  Neeley,  47  W.Va.  70,;  34  S.  E.  Rep. 

,  gins^v.   Armstrong,  9   Colo.    38;    10  828;   49   L.   R.   A.  468. 

Pac.  Rep.   232.  is  Butler    Savings    Bank     v.    Os- 

i:i  Taylor  v.   Castle,  42   Cal.   367;  borne,   159  Pa.  St.  10;  28  Atl.  Rep. 

Nishet  v.  Nash,   52  Cal.  540;   Clark  163.     It  should  be  observed  that  in 

V.    Ritter,   59    Cal.   669;    Charles   v.  Pennsylvania    such     a    thing    as    a 

Eshleman,   5  Colo.   107.  "  mining  partnership  "  is  unknown. 

1*  Dunham   v.    Loverock,    158    Pa.  ic  Meridian  National  Bank  v.  Mc- 

St.     197;     27    Atl.    Rep.    990.     See  Comica,  8  Ohio  Cir.  Ct.  Rep.  442. 


PARTNEKSIIIPS,  343 

where  coal  lands  descended,  one-third  to  the  widow  and  two- 
thirds  to  children  of  the  deceased,  and  the  latter  entered  on  the 
premises  and  worked  the  mines  thereon  until  nearly  exhausted, 
it  was  held  that  the  widow  could  not  hold  the  children  liahle  to 
her  as  partners  or  trespassers,  they  at  no  time  having  excluded 
her  from  the  premises ;  but  could  hold  them  as  co-tenants/' 
Where  leases  were  taken  in  the  individual  names  of  the  several 
lessees,  it  was  said  that  "  if  the  parties  by  parol  associated  them- 
selves as  partners,  for  the  purpose  of  developing  and  operating  it 
for  the  production  of  oil,  it  might  thereby  be  converted  into 
partnership  assets,  for  the  payment  of  partnership  debts."  ^^ 

§317.     Illustration  of  what  makes  a  mining  partnership. 

A,  owned  a  tract  of  undeveloped  coal  land.  He  agreed  with 
B.  and  C.  that  they  might  prospect  for  coal  until  they  struck  a 
particular  seam,  they  two  doing  all  the  work,  and  to  have  two- 
thirds  of  the  claim.  After  the  seam  was  struck,  the  three, 
jointly,  were  to  prosecute  the  work,  A.  paying  one  and  B.  and  C. 
two-thirds  of  the  expenses.  It  was  held  that  this  was  a  mining 
partnership;  and  did  not  create  the  relation  of  landlord  and 
tenant.^**  The  proprietors  of  ditches  in  mining  districts  are 
tenants  in  common  of  real  estate,  and  the  rights  in  the  ditch 
and  in  the  profits  arising  from  the  sales  of  water  are  governed 
by  the  law  of  tenancy  in  common.""  Two  persons,  being  the 
owner  of  a  two-thirds  interest  in  a  mine,  verbally  agreed  with 
the  plaintiff  that  they  would  furnish  the  tools  and  provisions 
and  he  should  explore  and  develop  the  mine ;  and  if  it  should 
prove  valuable,  they  would  give  him  an  equal  share  of  their  in- 
terest. This  was  held  to  make  a  mining  partnership."^  "  The 
working  of  a  mine  under  a  bare  mining  right  has  been  uniformly 

17  McGowan  v.  Bailey,  179  Pa.  i9  Henderson  v.  Allen,  23  Cal. 
St.  470;  36  Atl.  Rep.  325.  519. 

18  Brown  v.  Beecher,  120  Pa.  St.  20  Bradley  v.  Harkness,  26  Cal. 
590;  15  Atl.  Rep.  608.  See  Pat-  69;  McConnell  v.  Denver,  35  Cal. 
rick  V.  Weston,  22  Colo.  45;  43  Pac.  365. 

Rep.  446.  21  Settembre   v.    Putnam,   30   Cal. 

490. 


344  OIL    AND    GAS. 

considered  by  courts  of  equity  as  a  species  of  trade.  Hence  the 
legal  relations  existing  between  two  or  more  persons  interested 
in  such  a  right  is  that  of  a  qualified  partnership,  and  the  reme- 
dies relating  to  a  mining  partnership  are  available  for  the  asser- 
tion or  violation  of  any  right  arising  out  of  it."  '"  A  pirospector 
and  a  hotel  keeper  agreed  in  writing  "  to  share  equal  in  any 
mine  which  we  may  buy  or  find  from  this  date.  I,  B.,  offset 
my  time  against  my  board  with  M."  It  was  held  that  this 
made  them  tenants  in  common  of  any  mine  bought  at  their 
common  expense,  or  discovered  and  located  pending  this  wa-it- 
ten  agreement,  and  while  it  was  performed  by  M.  M.  having 
failed,  he  went  out  of  the  hotel  business,  and  did  not  and  could 
not  board  B.  It  was  also  held  that  he  was  not  entitled  to  any  in- 
terest in  mines  purchased  by  B.  with  his  own  individual 
money.^^  A  contract,  to  work  a  mine,  pay  one>-half  of  the  ex- 
penses, and  receive  one-half  of  the  product  for  the  labor,  does 
not  make  a  mining  partnership;  it  is  simply  a  contract  for  ser- 
vices.^* So  where  A.  agreed  with  B.  that  if  the  latter  would 
go  to  a  certain  county  and  produce  a  paying  quartz  mine,  A. 
would  pay  his  expenses  and  big  wages,  and  if  the  mine  proved 
to  be  a  paying  one,  would  give  him,  in  addition,  an  interest  in 
it,  this  was  also  held  to  be  a  mere  contract  of  hiring  and  not  a 
mining  partnership."^  Merely  agreeing  to  work  a  mine  to- 
gether constitutes  those  thus  agi'eeing  merely  mining  partners, 
whether  they  own  the  mine  "*'  or  only  a  right  to  work  it.'^  So  an 
association  of  persons  merely  for  the  purpose  of  operating  mines 
and  smelting  works  at  a  certain  place  is  merely  a  mining  part- 
nership."* An  agreement  by  four  persons  to  secure  a  lease  to 
a  certain  mining  property,  to  work  it  jointly,  each  to  have  a 
one-fourth  interest,  and  to  share  the  expenses  and  profits  equally, 
constitutes  a  mining  partnership,  and  is  not  disisolved  by  the 

22  Smith  V.  Cooley,  65  Cal.  46 ;   2  26  Charles    v.    Eshleman,    5    Colo. 
Pae.  Rep.  880.                                                107;    Nolan    v.    Lovelock,    1    Mont. 

23  Miller    v.    Butterfield,    79    Cal.       224. 

G2;   21  Pac.  Rep.  543.  27  Manville  v.  Parks,  7  Colo.  128; 

24  Stuart  V.  Adams,  89  Cal.  367;  2   Pac.   Rep.    212;    Harris  v.   Lloyd, 
26  Pac.  Rep.  970.  11   Mont.  390;   28  Pac.  Rep.  736. 

25  Berry    v.    Woodburn,    107    Cal.  2s  Hioojins   v.   Armstrong,   9   Colo. 
504;   40  Pac.  Rep.  802.  38;   10  Pac.  Rep.  232. 


PARTNERSHIPS.  345 

sale  of  his  share  by  one  of  their  number.-^  So  the  same  is  tnie 
if  they  jointly  employ  a  manager  to  run  the  mine  and  account 
to  them  for  the  proceeds  of  it.^*^  So  where  one  individual  owned 
seven-eighths  of  a  mine  and  another  the  remaining  eighth,  and 
the  latter  worked  the  mine,  practically  excluding  the  former, 
except  inviting  him  to  take  part  as  a  worker  simply;  it  was 
held  that  they  constituted  a  mining  partnership  under  a  statute 
providing  that  "  those  owning  a  majority  of  the  shares  or  in- 
terests in  a  mining  partnership  have  the  right  to  control  its 
methods  of  working,"  and  that  the  former  was  entitled  to  an 
injunction  restraining  the  latter  from  working  the  mine,  except 
as  he  should  direct. ^^  Where  a  statute  provided  if  two  or  more 
persons  should  own  or  acquire  a  mining  claim  for  the  purpose 
of  working  it  and  extracting  the  ore  therefrom;  and  if  they 
should  actually  engage  in  working  the  mine,  the  transaction 
should  constitute  a  mining  partnership ;  it  was  held  that  where 
one  individual  owned  three-fourths  and  another  one-fourth  in- 
terest in  a  mining  claim,  and  the  latter  had  alone  worked  the 
mine,  that  there  was  no  mining  partnership  created.^"  So 
taking  a  mortgage  on  a.  mine  and  the  mining  tools,  the  mort- 
gagor to  remain  in  possession,  and  at  the  time  of  each  "  clean 
up  "  the  proceeds  to  be  applied  to  pay  the  running  expenses  and 
the  mortgage  debt,  will  not  make  a  mining  partnership.^^ 

§318.     Promoters  — ^  prospectors. 

Promoters   are  not  jjai'tnersi;  ^*   nor,   generally,   are   provis- 
ional subscribers  to^  a  proposed  partnership."^     Nor  are  pros- 

29  Meagher  V.  Reed,  14  Colo.  335 ;  33  Chungkee     v.      Davidson,      102 

24  Pac.  Rep.  681;  9  L.  R.  A.  455.  Cal.  188;  36  Pac.  Rep.  519. 

30  Slater   v.   Haas,    15   Colo.   574 ;  34  Doubleday   v.   j\Iuskett,   4   Moo. 

25  Pac.  Rep.  1089;  Lyman  v.  and  P.  750;  7  Ring.  110;  9  L.  J. 
Schwartz,  13  Colo.  App.  318;  57  (os)  C.  P.  35;  Atwood  v.  Small,  7 
Pac.  Rep.  735.  R.  and  C.  390;  Higgins  v.  Hopkins, 

31  Hawkins  v.  Spokane,  etc..  Co.,  3  Exch.  163;  18  L.  J.  Exch.  113;  6 
2  Idaho  970;  28  Pac.  Rep.  433;  Ry.  Cas.  75;  Wilson  v.  Holden  (oth- 
Hawkins  v.  Spokane,  etc.,  Co.,  3  erwise  Bailey  v.  Haines),  15  Q.  B. 
Idaho  — ;   33  Pac.  Rep.  40.  533;  19  L.  J.  Q.  B.  73;  14  Jur.  835; 

3^  Anaconda,    etc.,    Co.    v.    Butte,       Sylvester  v.   ;McCuaig,   28  Up.   Can. 
etc.,  Co.,  17  Mont.  519;  43  Pac.  Rep.       C.  P.  443. 
924.  3.5  Dickinson   v.   Valpy,    10   B.  and 


346  OIL    AND    GAS. 

peetors',  joining  in  a  joint  enterprise  strictly  partners;  and  their 
transactions  are  not  governed  by  the  law  of  strict  partnership."'' 

§319.     Life  of  mining  partnership  —  dissolution. 

A  mining  partnership  will  continue  for  the  length  of  time 
agTeed  npon,  or  so  long  as  the  parties  act  together  as  a  partner- 
ship. If  no  limit  is  fixed  in  the  articles  of  agreement,  it  is  de- 
terminable, under  equitable  restrictions,  at  pleasure ;  but  tlie 
determination  cannot  defeat  rights  accrued  under  it  while  it 
was  in  force.^'  So  if  the  partnership  sell  or  otherwise  dispose 
of  all  its  property  it  is  by  the  act  of  sale  or  disposition  dis- 
solved.^^ Thus  where  a  co-partnership  was  formed  to  drill  a 
gas  well  and  supply  its  members  with  gas ;  and  at  the  request  of 
the  defendant  it  disposed  of  its  gas  well  to  a  third  party,  and 
the  defendant  agreed  to  furnish  gas  to  its  members  at  certain 
schedule  prices,  it  was  held  that  the  sale  of  the  property  of  the 
corpartnership  worked  the  dissolution  thereof,  and  that  the  indi- 
vidual members  had  not  such  a  community  of  interest  as  to  en- 
title them  to  sue  jointly  or  as  partners  for  the  breach  of  the 
contract.^^  Quarrels  and  dissensions  among  the  members  of  a 
partnership  to  an  extent  which  prevents  the  harmonious  working 
of  the  joint  enterprise,  is  good  ground  for  the  dissolution  of  the 
partnership;  and  pending  the  action  for  a  dissolution  a  receiver 
should  be  appointed  for  the  partnership ;  for  the  court  cannot 
put  'one  partner  or  set  of  partners  in  ]30Ssession  tO'  the  exclusion 
of  the  other  partner  or  set  of  partners.*"  In  an  action  for  a 
dissolution  of  a  mining  partnership  the  court  will  presume  that 
all  the  partners  have  an  equal  share  ;'*^  and  if  it    appear  that  one 

C.  128;   5  M.  and  Ry.   126;   8  L.  J.  183;   Thompson  v.  Bowman,  6  Wall 

(OS)    K.   B.    51;    Fox   v.   Frith,    10  316;   Kennedy  v.  Porter,  109  N.  Y. 

M:  and  W.  131;  Car  and  M.  502;  11  526;   17  N.  E.  Rep.  426;  Theriot  v. 

L.  J.   Ejith.   336.  Michel,  28  La.  Ann.  107. 

36  Boucher  v.  Mulverhill,  1  Mont.  so  Pennville,   etc.,   Co.   v.    Thomas, 

306.  21  Ind.  App.  1 ;   51  N.  E.  Rep.  351. 

""Lawrence  v.   Robinson..   4   Colo.  ^oChilders   v.   Neeley,   47   W.   Va. 

567.  70;   34  S.   E.  Rep.  828;  49  L.  R.  A. 

"8  Wells   V.   Ellis,   68   Cj\1.   243;    0  468. 

Pae.   Rep.   80;    Blaker  v.   Sands,   29  4i  Clark   v.    Brown,    83   Cal.    181; 

Kan.  551;   Wilson  v.  Davis,  1  Mont.  23  Pac.  Rep.   289. 


PARTNERSHIPS.  347 

partner  disposed  of  his  interest  it  will  be  presumed  that  the 
purchaser  became  a  member  of  the  partnership,  and  was  as  much 
so  as  his  vendor.*" 

§320.     Partition  and  accounting  works  a  dissolution. 

A  member  of  a  mining  partnership  cannot  have  a  partition 
of  the  mining  property  without  a  dissolution  of  the  partnership ; 
nor  can  he  have  an  accounting  without  the  same  result.*^ 

§321.     Majority  control. 

In,  a  mining  partnership  the  majority  in  interest  in  the 
proi>erty  control  tlie  enterprise,  and  may  bind  the  property  by 
contracts  ^ivithin  the  legitimate  scope  of  the  business;  and  all 
the  partners  will  be  bound  by  their  acts.**  Such  would  not  be 
the  case,  however,  if  the  object  of  the  partnership  was  pei-verted 
and  a  business  entered  upon  not  within  its  legitimate  scope.*^ 

§322.     Power  of  partner  in  mining  or  oil  enterprise. 

Partnerships,  whether  mining  partnerships  or  ordinary  part^- 
nerships,  are  not  commercial  or  trading  partnerships;  and  ono 
partner  does  not  have  the  power  to*  bind  the  partnership  that  ho 
would  have  if  they  were  commercial  or  trading  partnerships.*" 
He  cannot  bind  the  partnership  except  upon  such  contracts  as 
are  usual  and  necessary  in  the  ordinary  prosecution  of  the  work, 
unless  expressly  authorized.*^  There  is  no  presumption  that 
he  can  bind  the  firm  by  tlie  execution  of  a  promissory  note ;  and 
to  render  such  an  instrument  binding  on  the  firm,  his  power  to 
bind  it  must  be  shown.      This  is  true  even  though  he  be  the  man- 

42  Taylor  v.  Castle,  42  Cal.  367;  Lovelock.  1  Mont.  224;  Childers  v. 
Nisbet  V.  Nash,  52  Cal.  540.  Of  Neeley.  47  W.  Va.  70;  34  S.  E.  Rep. 
course  no  such  a  presumption  would  828 ;  49  L.  R.  A.  4G8 ;  Hawkins  v. 
prevail  with  respect  to  an  ordinary  Spokane,  etc.,  Co..  2  Idaho  970;  28 
partnership.  Pac.   Rep.   433. 

43  Nisbet   V.    Nash,    52    Cal.    540 ;  45  Childers  v.  Neeley,  supra. 
Clark  V.  Ritter,  59  Cal.  609.  46  Jones  v.  Clark,   42   Cal.   180. 

44  Dougherty    v.    Creary,    30    Cal.  47  Jones  v.  Clark,  supra. 
290;    89    Am.    Dec.    116;    Nolan    v. 


348  OIL    AND    GAS. 

aging  partner  or  agent  of  the  firm/^  But  if  a  partner  gives  a 
promissoiy  note  for  money  loaned  the  partnership,  the  person 
loaning  may  usually  recover  for  the  amount  loaned  from  the 
partnership',  if  he  can  show  that  it  was  used  for  the  legitimate 
purposes  of  the  partnership;  but  the  cause  of  action  is  not  based 
upon  the  note  —  the  action  is  for  money  paid  to  the  partnership 
use,  and  only  so  much  can  be  recovered  as  was  used  by  the  part- 
nership, at  least  this  is  true  for  the  purpose  of  reimbursing 
the  partner  out  of  the  partnership  assets  who  signed  the  note 
and  had  it  to  pay.*^  One  partner  cannot  borrow  money  upon 
the  faith  of  the  piartuership  credit,  even  upon  the  most  urgent 
occasions,^"  unless  expressly  authorized  so  to  do,  or  such  is  the 
usage ;  ^^  and  such  authority  must  be  more  than  inferential  —  it 
must  be  specific.^^  Money  borrowed  by  a  partner  without  au- 
thority, and  accepted  and  used  by  the  partnership,  or  used  with- 
out any  specific  act  of  acceptance,  may  be  recovered  from  such 
partnership.^^  But  one  partner  has  power  to  bind  the  corpo- 
ration by  buying  materials  to  be  used  in  its  legitimate  business, 
such  as  tools,  fuses,  powder,  and  the  like,  or  in  selling  its  prod- 
ucts. So  the  suj>erintendent  of  a  mine  may  purchase  such  arti- 
cles as  are  necessary  for  the  conduct  of  the  mine  in  the  usual 


48  Skillman  v.  Lachman,  23  Cal.  man  Mining  Co.,  4  D.  G.  M.  and  G. 
199;  Dickinson  v.  Valpy,  10  B.  and  19;  24  L.  J.  Ch.  41;  18  Jur.  710;  23 
C.  128;  Brown  v.  Kidger,  3  H.  and  L.  T.   (os)    200;  2  W.  R.  543. 

N.  853;  Jones  v.  Clark,  42  Cal.  180;  so  Hawtayne  v.  Bourne,  7  M.  and 

Decker    v.     Howell,    42    Cal.     636;  W.    595;    10    L.    J.    (N.    S.)    Exch. 

Charles   v.  Eshelman,   5   Colo.    107;  224;   5  Jur.   118;   Sims  v.   Brittain, 

Manville   v.   Parks,   7   Colo.   128;    2  4  B.  and  A.  375;  2  N.  and  M.  594; 

Pac.    Rep.    212;    Higgins    v.    Arm-  Randall   v.   Merideth,   76   Tex.   669; 

Ftrong,    9    Colo.    38;    10    Pac.    Rep.  13  S.  W.  Rep.  576. 

232;    Judge   v.    Braswell,    13    Bush.  si  Rieketts    v.    Bennett,    4    C.    B. 

69;  26  Am.  Rep.  185;   Shaw  -.  Mc-  686;   17  L.  J.    (N.  S.)    C.  P.  17;   11 

Gregory ,'•105  Mass.  96   (a  quarrying  Jur.    1062. 

firm);      Pooley     v.     Whitmore,     10  52  Burmester  v.   Norris,   21   L.   J. 

Heisk.  629;   27  Am.  Rep.  733 ;  Green-  (N.    S.)     Exch.    43;    6    Exch.    796; 

slade  V.  Dower,  7  B.  and  C.  635:   1  17  L.  T.  232;  Randall  v.  Merideth, 

M.  and  Ry.  640;  6  L.  J.   (os)  K.  B.  76  Tex.  669;   13  S.  W.  Rep.  576. 

155.  s:!  Tretj^ven   v.   Bourne,    6   M.   and 

49  Brown  v.  Kidger,  3  H.  and  N.  W.  461;  9  L.  J.  (N.  S.)  Exch. 
853;   28  L.  J.  Exch.  66;   in  re  Ger-  290;    4   Jur.   747. 


PARTISrERSIIIPS. 


349 


manner,  without  expiess  authority.^*  But  one  partner  cannot 
bind  liis  partnership  by  the  employment  of  an  attorney  to  pro- 
tect the  mine's  interest,^^  unless,  perhaps,  in  a  case  of  emergency 
where  he  had  no  time  to  consult  his  partners.  Yet  one  partner 
may  bind  his  firm  by  agreeing  to  pay  for  labor  in  the  partnership 
enterprise,^"  unless  tliere  is  an  express  agreement  between  the 
partners  that  he  should  have  no  such  power  and  of  which  the  em- 
ployed person  had  due  notice  at  the  time  of  the  employment. ^^ 
The  power  to  bind  the  partnership  by  a  purchase  does  not  ex- 
tend so  far  as  to  authorize  a  partner  of  a  firm  engaged  in  operat- 
ing coal  lands  to  purchase  additional  coal  lands ;  for  it  cannot 
be  said  that  such  power  falls  within  the  scope  of  the  partnership 
business.^*  Mining  partnerships,  in  the  strict  meaning  of  the 
term,  except  so  far  as  is  the  general  usuage  of  persons  engaged  in 
similar  pursuits,  or  the  particular  company  has  established  a 
different  iiile,  are  governed  by  the  law  of  ordinaiy  partner- 
ships."**  These  rules  are  applicable  to  oil  or  gas  partnerships 
formed  for  the  purpose  of  developing  oil  or  gas  lands  or  operat- 
ing gas  or  oil  wells.*^° 


Ri  Stuart  V.  Adams,  89  Cal.  367 ; 
26  Pac.  Rep.  970;  Roberts  v.  Eber- 
hart,  1  Kay.  148;  23  L.  J.  Ch.  201; 
22  L.  T.  253;  2  W.  R.  125. 

55  Charles  v.  Eshleman,  5  Colo. 
107. 

56  Burgan  v.  Lyell,  2  Mich.  102 ; 
55  Am.  Dec.  53 ;  Potter  v.  Moses,  1 
R.  I.  430;  Nolan  v.  Lovelock,  1 
Mont.   224. 

57  Nolan  V.  Lovelock.  1  Mont.  224. 

58  Judge  V.  Braswell,  13  Bush. 
69;  26  Am.  Rep.  185.  Nor  to  the 
development  of  a  mine  to  which  he 
did  not  assent.  Chase  v.  Savage, 
etc.,   Co.,   2    Nev.  9. 

50  Jones  V.   Clark,  42   Cal.   180. 

6  0  Childers  v.  Neeley,  47  W.  Va. 
76;  34  S.  E.  Rep.  828;  49  L.  R. 
A.  468.  Same  points  noted  above 
are  made  in  this  case.  See  also 
Ervin  v.  Masterman,   16    Ohio  Cir. 


Ct.  Rep.  62;  8  Ohio  Dee.  516;  Baker 
V.  Brennan,  12  Ohio  C.  D.  211;  22 
Ohio  C.  C.  241. 

Several  persons  entered  into  a 
written  agreement  to  sink  a  gas 
well,  each  to  pay  a  certain  sum 
which  was  stated  in  the  agreement. 
One  of  their  number  was  author- 
ized to  let  the  contract  for  the  well, 
which  he  did.  The  funds  thus  sub- 
scribed were  exhausted  in  the  work, 
and  no  gas  found.  Some  of  the 
subscribers  increased  their  sub- 
scriptions, and  the  well  sunk  deep- 
er, but  no  gas  found.  It  was  held 
that  those  who  did  increase  their 
subscriptions  were  not  liable  beyond 
the  amount  of  such  subscriptions. 
Clark  V.  Rumsey.  59  N.  Y.  App. 
Div.  435;  69  N.  Y.  Supp.  102;  52 
N.  Y.  Supp.  417. 


350  OIL    AND    GAS. 

§323.     Partner's  lien. 

A  partner,  whether  he  be  a  member  of  a  mining  partnership  ®* 
or  an  ordinary  partnership,  who  advances  more  than  his  share 
of  money  to  operate  or  develop  the  mine,  or  the  gas  or  oil  lands, 
has  a  lien  on  his  partner's  share  to  the  extent  of  his  over-advance- 
ment, on  final  acconnting.**'  And  where  the  partners  are  as- 
signees of  a  lease,  the  same  rule  prevails,  although  the  assigTi- 
ment  be  void,  because  not  recorded  according  to  the  requirements 
of  a  statute.*^^  Tenants  in  common  have  a  like  lien.*^*  Even 
though  a  note  be  given  individually  for  the  partnership  indebt- 
edness, the  lien  is  not  lost.**^  If  the  partnership  property  be 
divided,  the  partner's  lien  is  lost.  And  this  was  held  tnie  where 
the  oil  pumped  was  run  into  tanks  of  a  pipe  line  company, 
and  separate  certificates  of  the  amount  of  each  partner  was  given 
him  by  the  pipe  line  company,  as  per  agi'eement;  for 
in  that  instance  the  pipe  line  company  was  simply  the 
agent  of  the  partners  to  make  the  division.*'*'  So  if  a 
joint  certificate  of  the  amount  received  be  issued^  and  one  of 
the  partners  sell  his  share  in  it,  he  will  lose  his  lien,  especially 
if  there  is  an  agreement  each  may  dispose  of  his  share.*'^  Where 
two  partners  excluded  their  fellow  partner  and  leased  the  mine, 
it  was  held  that  the  latter  had  a  lien  on  the  ore  mined  by  the 
lessee  for  his  share,  although  not  on  ore  mined  before  tlie  lessee 
acquired  possession  of  the  mine.*'^ 

§324.     Liability  of  incoming  partner. 

An  incoming  partner  in  an  ordinary  partnersliip  is  not  per- 
sonally liable'  for  the  debts^  of  the  partnership  created  before 

61  Morganstern  v.  Thrift,  66  Cal.  es  Ervin  v.  Masterman,  supra. 

577 ;  6  Pac.  Eep.  689.  e4  Ervin   v.   Masterman,    supra. 

62Errin   v.    Masterman,    16   Ohio  es  Brown  v.  Beecher,   120  Pa.   St. 

Cir.   Ct.  Rep.  62;   8  Ohio  Dec.  516;  590;  15  Atl.  Rep.  608. 

Childers  v.  Neeley,  47  W.  Va.  70;  66  Childers  v.   Neeley,  supra. 

M  S.  E.  Rep.  828;  49  L.  R.  A.  468;  6  7  Ervin   v.    Masterman,   supra. 

Biirdon  v.   Barkas,   3   Giff.   412;   31  6s  Q.  V.  B.  Mine  Co.  v.  First  Na- 

L.  J.  Ch.  521;  8  Jur.    (N.  S.)    130;  tional  Bank,  95  Fed.  Rep.  23;  36  C. 

5  L.  T.  573 ;  Duryea  v.  Burt,  28  Cal.  C.  A.  633. 
569. 


PARTNERSHIPS.  351 

his  connection  with  it ;  imless  he  agreed  to  be  bound  for  them."® 
But  a  purchaser  of  a  partner's  share  in  a  mining  partnership 
takes  it  subject  to  the  remaining  partner's  lien  for  moneys  ad- 
vanced, unless  he  is  a  purchaser  in  good  faith,  without  notice, 
and  for  a  valuable  consideration.  It  will  be  presumed  he  had 
notice  of  the  lien  at  the  time  he  made  the  purchase ;  because 
the  existence  of  the  partnership  puts  him  on  notice. ^°  iVnd 
such  new  purchaser  is  liable  for  the  debts  of  a  mining  partner- 
ship before  he  became  a  member ;  for  his  admission  to  the  firm 
did  not  dissolve  the  firm,  it  continuing  the  same  as  it  was  be- 
fore,—  he  simply  taking  his  vendor's  place.^^  His  liability 
is  for  the  entire  amount  of  the  indebtedness.^" 

§325.     Each  partner  liable  for  all  partnership  debts. 

In  a  mining  partnership,  a,  partner  is  liable  the  same  as  in 
an  ordinaiy  partnership  —  each  partner  is  personally  liable  for 
the  entire  indebtedness  of  the  firm/^ 

§326.     Limited  partnerships. 

Statutes  have  been  enacted  providing  for  limited  partner- 
ships, which  are  made  applicable  to  mining  adventures.  It  does 
not  fall  wdthin  the  scope  of  this  volume  to  discuss  the  law  re- 
lating to  limited  partnerships,  and  therefore  no  farther  notice 
will  be  taken  of  such  statutes  or  decisions  relating  to  them.'^* 

6fi  Patrick  v.  Weston,  22  Colo.  45;  Contra,  Patrick  v.  Weston,  22  Colo. 

43  Pac.  Rep.  446;    Shireff  v.  Wilks,  45;    4.3  Pac.   Rep.  446. 

1   East  48;   Babcock  v.   Stewart,  58  t2  Stuart  v.  Adams,  89  Cal.  367; 

Pa.    St.    179;    Wright   v.    Brosseau,  26   Pac.  Rep.   970. 

73  111.  381;  Waller  v.  Davis.  59  Ta.  t.3  Stuart  v.  Adams,  89  Cal.  367; 

103;    12  N.   W.  Rep.   798;   Guild  v.  26  Pac.  Rep.  970. 

Belcher,    119   Mass.    257;    Fagan   v.  74  Pennsylvania    Act    of    June    2, 

Long,  30  Mo.  222;  Brown  v.  Beech-  1874.   P.   L.   271;    English   Acts,   25 

er,    120   Pa.    St.   590;    15    Atl.   Rep.  and  26  Vict.  c.  89;  30  and  31  Vict. 

60S.  c.   131;   33  and  34  Vict.  c.   104;   40 

The     retiring    partner     will     con-  and  41  Vict.  c.  26;   42  and  43  Vict, 

tinue  to  be  liable  for  the  old  debts,  c.    76;    43   Vict.   c.    19;    46    and   47 

the  same  as  if  he  had  not  retired.  Vict.  c.  30 ;   49  Vict.  c.  23 ;   53  and 

70  Duryea  v.  Burt,  28  Cal.  569.  54  Vict.  cc.   62.   63,   64 ;    56  and  57 

71  Jones    V.    Clark,    42    Cal.    180;  Vict.  c.  58;   and  61  and  62  Vict.  c. 


352 


OIL    AND    GAS. 


26.  See  Carter  v.  Producers,  etc., 
Oil  Co.,  164  Pa.  St.  463;  30  Atl. 
Rep.  391;  Ferguson  v.  Wilson,  L.  11. 
2  Ch.  App.  77;  15  W.  R.  27;  Hunt's 
case,  37  L.  J.  Ch.  278;  16  W.  R. 
472;  Weston's  case^  L.  R.  4  Ch. 
App.  20;  38  L.  J.  Ch.  49;  19  L.  T. 
337;  17  W.  R.  62;  Gilbert's  case, 
L.   R.   5   Ch.   App.    559;    18   W,   R. 


938;  Lumsden's  case,  L.  R.  4  Ch. 
App.  31;  17  W.  R.  65;  Gumming 
V.  Piescott,  2  Y.  and  G.  Exch.  488: 
Snell's  case,  L.  R.  5  Ch.  App.  22; 
Poole  V.  Middleton.  29  Beav.  646; 
9  Jur.  (N.  S.)  1262;  4  L.  T.  631, 
0  W.  R.  758;  Nation's  case,  L.  R. 
3  Eq.  77:  36  L.  J.  Ch,  112;  15  L.  T. 
308;   15  W^  R.  143. 


CHAPTER  XVI. 

MECHANIC'S  LIENS. 

§327.  Lubricating  oil. 

§328.  Labor  or  material  must  be  furnished  under  a  contract. 

§329.  For  what  material  furnished  a  lien  may  be  obtained. 

§330.  For  what  labor  a  lien  may  be  obtained. 

§331.  Overseer,  custodian  or  superintendent  entitled  to  a  lien. 

§332.  Upon  what  interest  in  land  lien  may  be  acquired. 

§333.  Lien  on  oil  well. 

§334.  Forfeiture  of  lease. 

§335.  Retroactive  effect. 

§336.  Priority  of  liens. 

§337.  Notice  of  claim  of  lien. —  Description  of  land. 

§338.  Assignment  of  claims. 

§339.  On  plant  of  public  gas  company. 

§340.  Oil  refinery. —  Paraffine  works. 

§327,     Lubricating  oil. 

Oil  furnished  with  which  to  oil  machinery  used  in  a  mine  or 
manufactory  does  not  enhance  the  value  of  the  mine  or  manufac- 
toiy,  nor  add  any  value  to  it;  so  that  a  person  furnishing  oil  of 
that  kind  cannot  obtain  a  lien  by  virtue  of  the  terms  of  a  statute 
giving  lien  for  material  furnished  such  structures.^ 

§328.     Labor  or  material  must  be  furnished  under  a  contract. 

The  foundation  of  the  right  to  secure  a  lien  for  labor  per- 
formed or  material  furnished  must  be  a  contract  with  the  owner 
of  the  land  upon  which  the  lien  is  sought  to  be  enforced ;  and  if 
there  does  not  exist  such  a  contract  exp'ress  or  implied,  the  per- 
son claiming  it  must  fail."     A  contract  with  one  not  the  o\vner 

1  Standard    Oil    Co.    v.    Lane,    75  Colo.   187;   60  Pac.  Rep.  354;  48  L. 

Wis.  63G;  44  N.  W.  Rep.  644;  7  L.  R.   A.   340;    Rico,   etc.,   Co.  v.   Mus- 

R.  A.  191.  grave,    14    Colo.    79;    23    Pac.    Rep. 

2Jurgenson    v.    Diller,     114    Cal.  458;    Murtland    v.    Callihan,    2    Pa. 

491;   46  Pac.  Rep.   610;   Wilkins  v.  Super.   Ct.   Rep.   340;    38   W.   N.   C. 

Abell,    26    Colo.   462;    58    Pac.    Rep.  512. 
612;      Davidson     v.     Jennings,     27 

353 


354  OIL    AND    GAS. 

or  his  agent  does  not  bind  the  land  or  the  improvements  upon 
it ;  nor  entitle  a  laborer  to  a  lien  for  work  done  for  a  person  he 
did  not  knoAV  to  be  the  owner,  and  not  to  be  working  the  mine 
as  a  representative  of  the  owner.^  So  a  laborer  employed  by  the 
owner's  liusband  and  another,  who  was  not  the  wife's  agent,  and 
upon  the  assurance  of  the  wife  that  her  husband  wanted  the 
mine  worked,  and  he  woukl  see  that  he  was  paid,  is  not  entitled 
to  a  lien  as  against  the  wife  under  a  statute  giving  a  laborer  a 
lien  for  work  done  on  real  estate  under  a  contract  with  the 
owner  of  it.*  So  a  laborer  working  on  a  mine  for  one  who  has 
ousted  the  true  owner  can  acquire  no  lien.^  Where  the  owaier 
of  a  mine  entered  into  a  contract  with  an  operator  to  operate 
the  min-e  and  make  certain  improvements  on  it,  with  the 
privilege  of  buying  it,  a  certain  percentage  of  the  pro- 
ceeds to  be  paid  him,  and  to  be  credited  on  the  pur- 
chase price  in  case  the  operator  purchased  the  mine;  and 
if  he  did  not  pay,  the  improvements  and  payments  to  be  for- 
feited, which  was  in  fact  done  and  the  mine  turned  back ;  it  was 
held  that  the  operator  was  the  "  agent "  of  the  owner,  and  per- 
sons working  for  him  or  furnishing  him  materials  for  use  in 
the  mine  were  entitled  to  a  lien.®  The  amount  to  be  paid  for 
services  need  not  be  definitely  agreed  upon,  if  there  is  an  agreer 
ment  to  pay.'^ 

§329.     For  what  material  furnished  a  lien  may  be  obtained. 

Under  the  California  statute  the  material  furnished  must  be 
used  on  the  mine  to  entitle  the  material  man  to  a  lien  for  its 
value. ^     So  the  vendor  of  machinery  for  boring  wells  to  a  con- 

3  Jurgenson  v.  Diller,  supra.  v.   Murray,    12  Mont.   545;    31   Pac. 

4  Folsom  V.  Cragen,  11  Colo.  205;  Rep.  550.       But  see  Maher  v.  Shull, 
17  Pac.  Rep.  515.  11    Colo.    App.    .322;    52    Pac.    Rep. 

5  Idalto  Gold  Mining  Co.  v.  Win-  1115,  where  a  Hen  was  enforced; 
chell,  3  Idaho  —  ;  59  Pac.  Rep.  533.  and    so    Hines    v.    Miller,    122    Cal 

6  Eaman  v.  Bashford  (Ariz.),  37  517:  55  Pac.  Rep.  401.  None  en 
Pac.  Rep.  24.  See  a  similar  case  forced  in  Skym  v.  Weske.  etc.,  Co 
where   the   operator  was   considered  (Cal.),   47    Pac.    Rep.    110. 

to   be  the  tenant,  and  therefore  no  7  Bewick  v.  Muir,  83  Cal.  373;  ?3 

lien  accrued.     Jordan  v.  Myers,  126       Pac.   Rep.  390. 

Cal.  505;  58  Pac.  Rep.   1061;  Block  s  Bewick   v.    Muir,    83    Cal.    373, 


ilECIIANIc's    I.IEXS.  355 

tractor  sinking  such  wells  is  not  entitled  to  a  lien  on  the  well  he 
bores  for  such  machinery's  price,  the  machinery  not  being  in- 
tended to  become  a  part  of  the  well,  and  in  fact  not  becoming 
so.**  But  one  furnishing  pipe  for  an  oil  well  is  entitled  to  a 
lien  ;^*'  and  so  one  fvimishing  material  for  an  oil  tank.^^  One 
furnishing  cars  to  be  used  in  a  coal  mine  is  entitled  to  a  lien 
under  a  statute  giving  any  one  a  lien  furnishing  "  any  material, 
fixtures,  engine,  boilers,  or  machinery  for  any  building  or  im- 
provement on  land."  "  A  going  coal  mine  is  not  merely  a  hole 
in  the  ground:  It  is  made  up  of  shafts,  drifts,  slopes,  engines, 
machinery,  platforms,  cars,  tracks,  scales,  etc,  and  taken  as  a 
thing,  if  not  a  building,  it  is  unquestionably  an  improvement, 
and  an  improvement  on  land."^^ 

So  a  lien  may  be  had  for  tools  furnished  to  be  used  in  a  mine 
in  California  ;^*  or  for  materials  furnished  to  build  a  dwelling 
house  on  the  claim,^^  even  though  built,  in  case  of  a  shop,  upon 
land  contiguous  to  the  mine  if  for  the  use  of  such  mine,  and  a 
part  of  the  mining  company's  property.  The  shop  may  be  sold 
with  the  mine  for  the  pui-pose  of  enforcing  the  lien."  Where  a 
statute  gives  a  lien  on  a  mine  for  "  timbers  or  other  material  to 
be  used  in  the  mine  "  furnished  by  a  material  man,  a  lien  may 
be  taken  for  powder,  steel,  and  candles  furnished  to  be  used  in 
it.^^  But  a  boiler,  pump,  engine,  and  machinery  not  situated 
in  or  in  any  way  connected  A\ath  the  improvement,  or  a  coal 
mine  lease,  used  only  for  the  purpose  of  drawing  up  coal  and 

2.3  Pac.  Rep.  390;  Hamilton  v.  Del-  i4  Malone    v.    Big   Flat,   etc.,   Co., 

hi,  etc.,  Co.,   118  Cal.   148;   50  Pac.  76  Cal.   578;    18  Pac.  Rep.   772.     A 

Rep.  378.  pump   fastened   to   works  furnish  a 

9  Jareki  Mfg.   Co.   v.    Struther,   8  good  claim  for  a  lien.     Goss  v.  Hel- 

Ohio    Cir.    Dee.    5;    14    Ohio    C.    C.  bing,  77  Cal.  190;  19  Pac.  Rep.  277. 

400.  15  Dickenson    v.    Bolyer,    55     Cal. 

it>Devine  v.  Taylor,   12  Ohio  Cir.  285. 
Ct.  Rep.  723;   4  Ohio  Cir.  Ct.  Dec.  le  Keystone    Mining    Co.    v.    Gal- 
248,    1    Ohio    Dec.    153;    Haskell    v.  lagher,    5    Colo.    23.     Lumber    fur- 
Gallagher,  20  Ind.  App.  224;  50  N.  nished  for  an  oil   refinery.        Short 
E.  Rep.  485;   67  Am.  St.  Rep.  250.  v.  Miller,   120  Pa.  St.  470;    14  Atl. 

11  Parker  Land  &  Oil  Co.  v.  Red-  Rep.   374. 
dick,    18   Ind.   App.   616;    47   K   E.  i7  Keystone    Mining    Co.    v.    Gal- 
Rep.  848.  lagher,  supra. 

13  Central   Trust   Co.  v.   Sheffield, 
etc.,  Co.,  42  Fed.  Rep.  106. 


356  OIL    AND    GAS. 

water,  will  not  fasten  a  lien  on  tlie  mine/^  One  furnishing 
natural  gas  to  run  an  engine  used  in  drilling  an  oil  well  is  such 
a  material  man  as  gives  him  a  lien  for  it  as  furnished/® 

§330.     For  what  labor  a  lien  may  be  obtained. 

Aside  from  the  question  who  or  what  employee  is  entitled 
to  a  lien,  and  not  discussing  the  right  to  a  lien  by  an  overseer, 
a  superintendent,  a  manager  or  foreman,  we  Avill  discuss  in  this 
section  what  services  will  entitle  an  employee  or  servant  to  a 
lien  for  labor  rendered ;  premising  our  discussion  by  the  remark 
that  local  statutes  wholly  govern  the  right.  One  working  upon 
a  house  situated  on  a  mining  claim  has  been  held  entitled  to  a 
lien  on  the  whole  mine."**  So  of  a  shop.^^  A  statute  providing 
that  "  all  persons  performing  labor  for  carrying];  on  any  mill 
shall  have  a  lien  on  such  mill  for  such  work  or  labor,"  gives  a 
teamster  a  lien  who  hauls  quartz  to  a  quartz  mill.'"  One  work- 
ing on  an  oil  tank,  having  a  capacity  of  two  or  three  hundred 
barrels,  placed  on  a  foundation  built  expressly  for  it,  out  of 
earth  and  lumber  on  the  land  of  the  person  ordering  it,  is  en- 
titled to  a  lien  under  the  general  mechanic's  lien  law  giving  a 
lien  upon  any  structure  built  upon  the  land,  such  oil  tank  being 
a  fixture."^  A  statute  giving  a  lien  for  work  performed  in 
making  shafts,  drifts,  etc.,  for  a  mine  does  not  give  a.  lien  for 
work  performed  in  building  a  wagon  road.^*  A  blacksmith 
sharpening  tools  and  drills  and  making  pipes,  and  other  neces- 
sary and  like  work  on  a  mine,  is  entitled  to  a  lien  on  the  mine ; 

18  Meistrell  v.  Reach,  56  Mo.  App.  22  Jn  re  Hope  Mining  Co.,  1  Savvy 
243.  710. 

19  Haskel  v.  Gallagher,  20  Ind.  23  Parker  Land  &  Oil  Co.  v.  Red- 
App.   224;    50   N.   E.   Rep.   485;    67  dick,    18    Ind.    App.   616;    47   N.   E. 

'Am.  St.  Rep.  250.  Rep.  848;  Standard  Oil  Co.  v.  Sow- 

20  Dicl^nson  v.  Bolyer,  55  Cal.  den,  55  Ohio  St.  332 ;  45  N.  E.  Rep. 
285.  See  Hamilton  v.  Delhi  Min-  320;  36  Wkly.  L.  Bull.  306;  37 
ing  Co.,  118  Cal.  148;  50  Pac.  Rep.  Wkly.  L.  Bull.  3;  Contra  Seiders. 
378.  etc..    Works    v.    Lewis,    etc..    Co.,    7 

21  Keystone  Mining  Co.  v.  Gal-  Pa.  Dist.  Rep.  278;  21  Pa.  Co.  Ct. 
lagher,    5    Colo.    23;     Meistrell     v.  Rep.  80. 

Reach,  56  Mo.  App.  243.  24  Williams  v.  Toledo  Coal  Co.,  25 

Ore.  426;   36  Pac.  Rep.  159. 


mechanic's  liens.  357 

for  such  tools  and  machinery  used  in  developing  a  mine  are  to 
he  considered,  while  so  used,  as  affixed  to  it  under  the  Code  of 
Califomia.^^  In  California  a  contractor  for  tlie  labor  of  others 
in  a  mine  at  a  fixed  rate  for  each  man  per  day  is  entitled  to  a 
lien  for  their  labor.""  One  hauling  pipe  to  be  used  in  an  oil 
Avell  is  entitled  to  a  lien.^'^  But  a  statute  giving  a  lien  upon  all 
tools,  machinery  and  stock  located  in  or  about  a  mill  or  shop,  to 
all  labors  employed  in  and  about  it,  in  ease  of  insolvency,  will 
not  give  a  lien  upon  a  boiler,  engine,  shafting,  beam,  derrick, 
reel,  ropes  and  drill,  when  put  in  place  and  action,  but  not  con- 
nected with  any  mill  or  shop.'* 

§331.     Overseer,  custodian  or  superintendent  entitled  to  a  lien. 

Under  the  statute  providing  that  "  every  person  performing 
labor  "  for  a  mining  company  doing  business  in  the  State  shall 
be  entitled  to  a  lien  on  all  its  property,  taking  precedence  over 
all  other  debts  or  judgments  against  the  company,  an  overseer 
and  custodian  of  the  mine  and  property  of  such  a  company  is 
entitled  to  a  lien  for  his  services.'^  So  it  has  been  held  that  a 
superintendent  of  a  mine  rendering  service  in  planning  and 
superintending  development  of  mines,  and  in  planning  and  sup- 
erintending the  erection  of  a  mill  and  machinery  for  them,  per- 
formed work  and  labor  in  or  upon  the  property  of  a  mining 
company,  such  as  entitled  him  to  a  lien  for  his  services,  but  not 
for  services  in  keeping  books  and  disbursing  funds.^"  Of  a 
foreman  it  is  said :  "  He  certainly  did  work  in  the  mine, 
though  not  witli  his  hands,  and  it  is  clear  that  tlie  direct  ten- 
dency of  his  work  was  to  develop  the  property.  We  think  the 
foreman  of  work  in  the  mine  is  as  fully  secured  by  the  law  as 
the  miners  who  work  under  his  directions."  ^^      Of  a  similar  in- 

25Malone    v.    Big    Flat,    etc.,    76  29  McLaren    v.    Byrnes,    80    ]\Iicli. 

Cal.  578;   18  Pac.  Rep.  772.  275;    45  N.  W.  Rep.   143. 

2<i  Malone  v.  Big  Flat  Gravel  Co.,  so  Rara  Avis'  Gold  &  Silver  Min- 

76  Cal.  578;   18  Pac.  Rep.  772.  ing  Co.  v.  Bouscher,  9  Colo.  385;  12 

27  McEhvaine   v.   Hosey,   135   Ind.  Pac.    Rep.    433;    Palmer    v.    Uncas 
481;  35  N.  E.  Rep.  272.    '  Mining   Co.,    70    Cal.   614;    11    Pac. 

28  Ibid.  Rep.  666. 

siCapron  v.  Strout,  11  Nev.  304. 


358  OIL    AND    GAS. 

stance  the  Supreme  Court  of  the  United  States  said :  "  He 
was  not  the  general  agent  of  the  mining  business  of  the  plaintiff 
in  error.  That  office  was  filled  by  Patrick.  He  was  not  a 
contractor.  The  services  rendered  by  him  were  not  of  a  pro- 
fessional character,  such  as  those  of  a  mining  engineer.  He 
was  the  overseer  and  foreman  of  the  body  of  miners  who  per- 
formed the  manual  labor  upon  the  mines.  He  planned  and 
personally  superintended  and  directed  the  work,  with  a  view  to 
develop  the  mine  and  make  it  a  successful  venture.  He  appears 
from  the  findings,  to  have  performed  services  similar  to  those 
required  of  the  foreman  of  a  gang  of  track  hands  upon  a  rail- 
road, or  a  force  of  mechanics  engaged  in  building  a  house. 
Such  duties  are  very  different  from  those  which  belong  to  the 
general  superintendent  of  a  railroad,  or  the  contractor  for  erect- 
ing a  house.  Their  j>erformance  may  well  be  called  work  and 
labor ;  they  require  the  personal  attention  and  supervision  of 
the  foreman ;  and  occasionally  in  an  emergency,  as  for  example, 
it  becomes  necessary  for  him  to  assist  with  his  own  hands. 
Such  duties  cannot  be  performed  without  much  physical  exer- 
tion, which,  while  not  so  severe  as  that  demanded  of  the  work- 
men under  the  control  of  the  foreman,  is  nevertheless  really 
work  and  labor.  Bodily  toil,  as  well  as  some  skill  and  knowl- 
edge in  directing  the  work,  is  required  for  their  successful  per- 
formance. We  think  that  the  discharge  of  such  duties  may 
well  be  called  work  and  labor,  and  that  the  District  Court  right- 
fully declared  the  person  who  performed  them  entitled  to  a 
lien,  under  the  law  of  the  Territory."  ^"  So  the  superintendent 
of  the  construction  of  a  gas  pipe  line,  having  full  supervision  of 
the  digging  of  the  trenches,  the  laying  of  gas  pipes,  etc.,  with 
full  authority  to  hire  and  discharge  employees,  being  required 
•  to  walk  along  the  pipe  lines,  test  the  wells,  which  required  him 
to  handle  wrendies  and  tools  for  short  periods  of  time,  was  held 
entitled  to  a  lien  under  a  statute  giving  "  laborers  and  em- 
ployees "  liens  on  the  property  of  an  insolvent  corporation.^^ 
On  the  other  hand  it  has  been  held  that  a  general  manager  and 

32  Fla.^staflf.   etc.,   Co;    v.   Cnllins,       Stryker  v.  Cassidy,   76  N.  Y.  50. 
104   U.   S.   176,  afRrming  Cullins  v.  ss  Pendergast  v.  Yandes,  124  Ind. 

Flagstaff,    etc.,    Co.,    2    Utah    219;       159;  24  N.  E.  Rep.  724. 


MECHANIC  S    LIENS. 


359 


superintendent  of  a  mine  who  does  not  perform  bodily  toil  is 
not  entitled  to  a  lien  upon  it  under  a  statute  giving  a  lien  to  one 
"  who  jierforms  labor  in  any  mining  claim."  ^* 

§332.     Upon  what  interest  in  land  a  lien  may  be  acquired. 

In  Indiana  the  lien  attaches  only  to  the  interest  the  person 
against  whom  it  is  sought  to  enforce  has  in  the  land.  This  is 
made  so  by  the  express  words  of  the  statute.  It  may  be  en- 
forced against  the  lessee's  interest,  when  the  work  is  performed 
for  him ;  but  does  not  bind  the  lessor's  interest.^^  In  Missouri 
a  laborer  for  a  mere  licensee,  to  operate  on  land,  does  not  get  a 
a  lien  on  the  land."'''  In  Montana  the  employee  of  a 
leasehold  cannot  acquire  a  lien  against  the  mining  property. ^^ 
In  Iowa  he  can  f^  so  in  Pennsylvania,^®  in  Ohio,*"  and  in  Mis- 
souri. In  the  case  of  a  mine,  a  lien  does  not  attach  to  the  in- 
terest of  the  lessee  if  no  minerals  be  found.*^ 


)333.     Lien  on  oil  well. 


In  Indiana  a  statute  provided  that  "  all  persons,  perfortaing 
labor  or  furnishing  material  or  machinery  for  erecting,  altering, 
repairing,  or  removing  any  house,  mill,  manufactory,  or  other 
building,  reservoir,  system  of  waterworks,  or  other  structure," 


3*  Boyle  V.  Mountain,  etc.,  Co.  N. 
M. ;  50  Pac.  Rep.  347.  Same  result. 
Smallhouse  v.  Kentucky,  etc.,  Co.,  2 
Mont.  443. 

35  Hopkins  v.  Hudson,  107  Ind. 
191;  8  N.  E.  Rep.  91;  St.  Clair 
Coal  Co.  V.  Martz,  75  Pa.  St.  384; 
United  Mines  Co.  v.  Hatcher,  79 
Fed.  Rep.  517;  25  C.  C.  A.  46. 

36  Springfield  Foundry,  etc.,  Co. 
V.  Cole,  130  Mo.  1;  31  S.  W.  Rep. 
922,  reversing  57  Mo.  App.  11.  So 
in  Oregon.  Stinson  v.  Hardy,  27 
Ore.  584;  41  Pac.  Rep.  IIG;  former- 
ly so  in  Colorado;  Wilkins  v.  Abell, 
26  Colo.  462;  58  Pac  Rep.  612;  Lit- 
tle Valeria,  etc.,  Co.  v.  Ingersoll,  14 
Colo.  App.   240;   59  Pac.  Rep.  970; 


Schweizer  v.  Mansfield,  14  Colo. 
App.  236;   59  Pac.  Rep.  843. 

37Pelton  V.  Minah,  etc.,  Co.,  11 
Mont.  281;  28  Pac.  Rep.  310;  Block 
V.  Murray,  12  Mont.  545;  31  Pac. 
Rep.   550. 

38  Mitchell  V.  Burwell,  110  la.  10; 
81  N.  W.  Rep.   193. 

39McElwaine  v.  Brown  (Pa.); 
11  Atl.  Rep.  453;  Thomas  v.  Smitfi, 
42  Pa.  St.  68. 

■*o  Acklin  v.  Woltermeier,  19  Ohio 
C.  C.  Rep.  372;   10  Ohio  C.  D.  629. 

41  Blindert  v.  Kreiser,  81  Wis. 
174:  51  X.  W.  Rep.  324;  Colvin  v. 
Weimer.  64  Minn.  37;  65  N.  W. 
Rep.  1079. 


360  OIL    AND    GAS. 

might  liiive  a  mechanic's  lien.  It  was  held  tliat  this  statute  gave 
a  lien  for  work  performed  in  drilling  an  oil  well,  and  for  natural 
eras  furnished  the  contractor  as  fuel  with  which  to  run  the 
engine  by  which  power  was  supplied  for  drilling  the  well.  It 
was  considered  that  the  oil  well,  boilers,  engine,  shafting,  beam, 
derrick,  reel,  ropes  and  drill  when  put  in  place  and  action,  in 
drilling  a  gas  well,  constituted  a  '"  structure  "  within  tlie  mean- 
ing of  the  statute.  "  If  such  appliances  for  making  a  gas  well 
be  a  structure,  it  would  seem  that  a  completed  oil  well  with  all 
its  appliances,  including  the  drilled  hole  in  the  earth,  with  it& 
tubing,  should  also  be  regarded  as  within  the  meaning  to  which 
the  language  of  the  statute  may  legitimately  be  expanded  in  the 
application  by  the  courts."  *^ 

^     §334.     Forfeiture  of  lease. 

A  lien  for  work  and  labor  in  putting  up  a  structure  for  a 
lessee  on  his  lease,  to  be  used  in  the  operation  of  a  gas  and  oil 
well,  is  not  impaired  by  the  forfeiture  of  the  lease,  where  the 
lien  attaches  prior  to  the  forfeiture,  nor  by  the  failure  of  the 
lessee  to  drill  a  well  in  accordance  with  the  terms  of  the  lease, 
where  a  statute  provides  that  "  where  the  owner  has  only  a  lease- 
hold interest,  or  the  land  is  incumbered  by  mortgage,  the  lien 
so  far  as  concerns  the  buildings  erected  by  said  lien  holder  is 
not  impaired  by  forfeiture  of  the  lease  for  rent  or  foreclosure  of 
mortgage ;  but  the  same  may  be  sold  to  satisfy  the  lien  and  re- 
moval within  "  a  certain  specified  number  of  days  after  the 
sale.*' 

42  Haskell    v.    Gallagher,    20    Ind.  v.   Waltermier,   19   Ohio   C.   C.  Rep. 

App.    224;    50   N.    E.    Rep.    485;    67  372;    10   Ohio   C.   D.   629.     Doubted 

Am.    St.    Rep.    250;    MeElwaine    v.  in  Orth  v.  West  &  East  Oil  Co.,  159 

Hosey,  135  Ind.  481;   35  N.  E.  Rep.  Pa.  St.  388;   28  Atl.  Rep.  180.       In 

272;   Hoppes  v.   Bale,   105   la.   648;  drilling  a  well  to  find  minerals,  and 

75  N.  W.  Rep.  495    (a  water  well).  no  minerals  were  found,  it  was  held 

Contra,   Omaha,    etc.,   Co.  v.   Burns,  that  no  lien  attached  to  the  lessee's 

49    Neb.   229;    68  N.   W.   Rep.   492;  interest.        Colvin     v.    Weimer.     64 

Vandergrift's    Appeal,     83    Pa.    St.  Minn.  37;   65  N.  W.  Rep.   1079. 
126;  Devine  v.  Taylor.  12  Ohio  Cir.  43  Montpelier.  etc.,  Co.  v.  Stepheii- 

Ct.   Rep.    723;    1   Ohio  Dec.   153;    4  son,    22    Ind.    App.    175;    53    N.    E. 

Ohio  Cir.  Ct.  Dec.  248.     See  Acklin  Rep.  444.     Unless  the  statute  gives 


MECIIA^sIC^S    LIEXS.  3G1 

§335.     Retroactive  effect. 

A  law  giving  a  lien  will  not  be  so  construed  as  to  give  a  retro- 
active effect.  Thus  where  a  statute  did  not  give  a  lien  against 
a  leasehold  interest  in  the  land,  but  was  so  amended  as  to  give  a 
lien  to  laborers  working  for  the  lessee  against  the  lessor's  in- 
terest in  the  land,  it  was  held  tliat  the  statute  as  amended  did 
not  apply  to  work  performed  before  it  was  amended.** 

§336.     Priority  of  liens. 

Statutes  giving  mechanics  and  laborers  liens  often  provide 
that  no  lien  on  a  structure  shall  have  preference,  when  the 
several  holders  contributed  to  the  same  results  and  their  labors 
all  eontributod  to  it.  In  Ohio  a  statute  provided  that  where 
several  persons  obtained  liens  on  the  same  "  job,"  they  should 
have  no  priority  among  each  other.  It  was  held  that  the  construc- 
tion of  an  oil  well  was  a  "  job,"  and  all  lien-holders  thereon 
w^ere  on  an  equality.*^  In  Michigan  a  miner's  lien  accrues  as 
the  labor  is  performed ;  and  where  labor  has  been  performed 
before  the  levy  of  a  writ  of  attachment,  the  laborer  is  entitled  to 
priority  over  it,  although  he  did  not  file  his  notice  of  a  claim 
until  after  the  levy.*"  But  a  mortgage  recorded  before  the  con- 
tract for  labor  has  been  made  takes  precedence  of  tlie  labor's 
lien.*^     A  statute  may  provide  that  a  labor's  or  material  man's 

a  lien  holder   the  right  to  sell  and  46  McLaren    v.    Byrnes,    80    ]Mich. 

remove  the  fixtures  he  places  upon  275;   45  X.  W.  Rep.   143;   Peatman 

the   leased    premises,   he   cannot   do  v.   Centerville,   etc.,  Co.,   105  la.   1; 

so,  and  his  only  remedy  is'  against  74  N.  W.  Rep.  689    (a  judgment)  ; 

the    premises    and    fixtures    or    real  Standard  Oil  Co.  v.  Sowden,  55  Ohio 

estate.       Chicago     Smokeless     Fuel  St.  332;  45  N.  E.  Rep.  320  (a  mort- 

Gas  Co.  V.  Lyman,  62  111.  App.  538.  gage)  ;  Sicardi  v.  Keystone  Oil  Co.. 

44  United    Mines   Co.   v.    Hatcher.  149  Pa.  St.  639;   24  Atl.  Rep.  163; 

79  Fed.  Rep.   517;   25  C.  C.  A.  46;  Trust  v.  Miami  Oil  Co.,  10  Ohio  C. 

Gardner    v.    Resumption,    etc.,    Co..  D.  372;  19  Ohio  C.  C.  Rep.  727. 

4  Colo.  App.  271;  35  Pac.  Rep.  674;  47  Folsom    v.     Cragen,     11     Colo. 

Hunter  v.  Savage,  etc.,  Co.,  4  Nev.  205;    17  Pac.  Rep.  515;   Rawlins  v. 

153.  New   Memphis,   etc.,  Co.,   105  Tenn. 

45Devine  v.  Taylor.  12  Ohio  Cir.  268;   60  S.  W.  Rep.  206. 
Ct.   Rep.  723;   4  Ohio  Cir.  Ct.  Dec. 
248;   1  Ohio  Dec.  153. 


3G2  OIL    AKD    GAS. 

lien  shall  take  precedence  of  a  prior  recorded  mortgage/^  The 
lien  attaches  when  the  work  is  commenced  or  the  material  fur- 
nished.*® 

§337.     Notice  of  claim  of  lien  —  description  of  land. 

The  notice  of  the  lien,  or  of  an  intention  to  claim  one,  must 
so  describe  tlie  property  upon  which  the  lien  is  claimed  as  to 
identify  it,  or  the  lien  will  be  void.^"  An  incorrect  description 
of  metes  and  bounds  will  render  the  notice  invalid.^^  The  pre- 
cise words  of  the  statute  need  not  be  followed;  substantially 
equivalent  expressions  will  suffice.^^  Where  a  statute  required 
ainong  other  things,  "  the  name  of  the  owner  or  reputed  o^vner, 
if  known,  and  also  the  name  of  the  person  by  whom  he  was 
employed,"  to  be  stated,  a  failure  to  insert  in  the  claim  a  state- 
ment by  whom  the  claimant  was  employed  renders  it  fatally 
defective.'^^  But  a  statement  that  the  claimant  was  employed 
by  the  defendant  company  without  naming  the  company's  agent, 
is  sufficient.^*  Where  a  statute  requires  "  a  statement  of  the 
terms,  time  given,  and  conditions  of  the  labor  contract,  and  also 
a  description  of  the  property  to  be  cliarged  with  the  lien  suffi- 
cient for  identification,"  to  be  inserted  in  the  claim,  if  there  is 
set  forth  in  the  claim  the  kind  and  number  of  days  of  labor  per- 
formed, the  dates  between  which  it  was  performed,  with  the 
aggregate  sum  then  due,  and  "  that  the  terms  of  payment  for 
said  labor  were  cash,  as  soon  as  said  labor  was  performed,"  and 
a  description  of  the  property  by  name  and  the  district,  where  it 
is  well  kno^vn,  that  will  be  sufficient.^^  Under  the  statute  just 
referred  to  as  against  the  interest  of  one  who  enters  and  operates 

4S  Warren  v.  Sohn,  112  Ind.  213;  si  Fernandez  v.  Burleson,  swpra. 

13  N.  E.  Rep.  863.  52  Ascha  v.  Fitch    (Cal.),  46  Pae. 

49  Bristol,     etc.,     Co.     v.     Bristol,  Rep.  298;   Bewick  v.  Muir,   83  Cal. 
etc.,   Co.,   99   Tenn.    371;    42   S.   W.  373;  23  Pac.  Rep.  390. 

Rep.  19.  53  Ascha  v.   FHch,  supra. 

50  Fernandez  V.  Burleson,   110  Cal.  54  Malone  v.  Big  Flat  Gravel  Co., 
164;   42   Pac.   Rep.   566;    Rico,   etc.,       76  Cal.  578;   18  Pac.  Rep.  772. 

Co.   V.   Musgrave,    14    Colo.  79;    23  55  Tredinnick   v.   Red   Cloud,   etc., 

Pac.    Rep.    458;    Tfedinnick  v.    Red       Co.,  72  Cal.  78;  13  Pac.  Rep.  152. 

Cloud,  etc.,  Co.,  72  Cal.  78;  13  Pac. 
Rep.  152. 


mechanic's    LIEXS.  363 

several  claims  as  one  mine,  they  may  be  treated  as  a  single 
claim,  and  declared  upon  as  sucli.^*' 

§338.     Assignment  of  claims. 

A  claim,  secured  by  a  mechanic's  lien,  may  be  assigned ;  and 
the  assignment,  will  carry  the  lien  so  that  the  assignee  can  en- 
force it."  And  if  the  statute  provide  for  a  penalty  and  attor- 
ney's fees,  the  assignee  may  also  recover  these.^^ 

§339.     On  plant  of  public  gas  company. 

A  lien  may  be  acquired  on  the  plant  of  a  gas  company  fur- 
nishing gas  to  a  municipality  for  work  and  materials  furnished 
as  readily  as  upon  an  entirely  private  concern.  And  the  fact 
that  the  public  might  be  inconvenienced  is  not  a  bar  to  the  en- 
forcement of  the  lien.^*^  The  entire  plant  of  the  company  is 
subject  to  the  lien,  including  pipes  laid  in  the  streets  of  the 
municipality  and  on  the  interest  of  the  company  in  the  prem- 
ises.*^" By  special  agreement,  one  furnishing  maehiner)^  for  a 
gas  plant  may  retain  a  lien  on  the  machinery  he  furnishes,  for 
its  price,  after  it  is  affixed  to  the  company's  premises.*^^  And 
even  when  it  is  held  that  a  lien  cannot  be  acquired  upon  the 

5G  Hamilton  v.  Delhi  Mining  Co.,  Water  Co.,  52  Fed.  Rep.  43;  Oconto 

118  Cal.  148;  50  Pac.  Rep.  378.  Water  Co.  v.  National  Foundiy,  59 

5-Malone  v.  Big  Flat  Gravel  Co.,  Fed.  Rep.  19;  7  C  C.  A.  603;  Bris- 

76  Cal.  578;   18  Pac.  Rep.  772.  tol    Goodson,    etc.,    Co.    v.    Bristol, 

58  Mitchell  V.  Burwell,  HO  la.  etc.,  Co.,  99  Tenn.  371;  42  S.  W. 
10;    81   X.   W.  Rep.   103.  Rep.    19;    Rawlings    v.    New    Mem- 

59  Wood  V.  Holly  Mfg.  Co.,  100  phis,  etc.,  Co.,  105  Tenn.  268;  60  S. 
Ala.  660;  13  So.  Rep.  948;  Badger  W.  Rep.  206;  Goss  v.  Helbing.  77 
Lumber  Co.  v.  :Marion,  etc.,  Co.,  48  Cal.  190;  19  Pac.  Rep.  277;  Light 
Kan.  187;  30  Pac.  Rep.  117;  affirm-  Co.  v.  Gill,  14  Pa.  Co.  Ct.  Rep.  6; 
ing  29  Pac.  Rep.  476;  Oconto  Water  McNeal,  etc.,  Co.  v.  Howland,  111 
Co.  V.  National  Foundry,  59  Fed.  N.  C.  615;  16  S.  E.  Rep.  857,  20 
Rep.  19;  7  C.  C.  A.  603;  National  L.  R.  A.  743.  But  see  Eufaula 
Foundry  Co.  v.  Oconto  Water  Co.,  Water  Co.  v.  Addystone  Water  Co., 
52  Fed.  Rep.  43;  Steger  v.  Artie  89  Ala.  522;  8  So.  Rep.  25. 
Refrigerator  Co.,  89  Tenn.  453 ;  14  ei  Wood  v.  Holly  Mf.  Co.,  100 
So.  Rep.   1087;    11  L.  R.  A.  580.  Ala.  326;   13  So.  Rep.  948. 

60  National    Foundry    v.    Oconto 


364  OIL    AND    GAS. 

premises  of  a  gas  company  supplying  a  city  with  gas,  a  lien  may 
be  retained  on  machinery  sold  conditionally  to  the  gas  com- 
pany.^" Where  a  lien  cannot  he  obtained  on  the  plant  itself, 
because  of  the  fact  that  the  company  has  no  interest  in  the 
premises  sufficient  for  a  lien,  and  a  statute  gives  the  person  fur- 
nishing machinery  a  lien  on  such  machinery  and  the  right  to 
remove  it,  yet  he  cannot  acquire  a  lien  on  the  pipes  in  the  street 
connected  with  the  plant,  they  not  being  subject  to  a  lien ;  for 
the  plant  is  an  integer,  and  cannot  be  separated  under  a  lien."' 
Yet  when  a  company  was  conducting  a  plant  for  a  city,  and  gave 
a  trust  deed  on  the  machinery  to  the  vendor  of  it,  providing 
that  the  machinery  should  not  be  considered  as  fixtures  until 
it  was  paid  for ;  it  was  held  that  public  necessity  required  the 
plant  and  the  company's  franchise,  where  it  was  in  the  hands  of 
a  receiver,  to  be  sold  together,  and  that  the  trust  deed  sjiould 
be  a  specific  lien  tliereon  to  the  extent  of  the  value  of  the  ma- 
chinery.''* 

§340.     Oil  refinery  —  paraffine  works. 

An  oil  refinery  is  a  building,  within  the  meaning  of  that  term 
as  used  in  a  statute ;  and  a  lien  may  be  secured  upon  it  by  a 
material  man  furnishing  timbers  for  it.''^  And  although  the 
several  structures^  constituting  the  refinery  consist  of  appliances 
put  up  in  the  open  air,  and  are  not  enclosed  under  a  roof  or  shed, 
yet  a  material  man's  lien  for  furnishing  material  for  any  one 
of  such  appliances  extends  to  the  whole  refinery.*'"  Paraffine 
works  are  part  of  a  refinery."^ 

62  Holly  Mf.  Co.  V.  New  Chester  ee  Titusville  Iron  Works  v.  Key- 
Water  Co.,  48  Fed.  Rep.  879.  stone  Oil  Co.,  130  Pa.  St.  211;  18 
'  63  Oconto  Water  Co.  v.  National  Atl.  Rep.  739;  Linden  Steel  Co.  v. 
Foundry,  ^9  Fed.  Rep.  19;  7  C.  C.  Imperial  Refining  Co.,  138  Pa.  St. 
A.  603.  10;    20   Atl.   Rep.   867,   869. 

64  McNeal  Pipe,  etc.,  Co.  v.  Wolt-  67  Sicardi  v.  Keystone  Oil  Co., 
man,  114  N.  C.  178;  19  S.  E.  Rep.  149  Pa.  St.  139;  24  Atl.  Rep.  161, 
109.  163. 

65  Short    V.    Miller,     120    Pa.    St. 
470;  14  Atl.  Rep.  374. 


CHAPTER  XVII. 

MORTGAGES. 

Art.  1.     Mortgage  of  oil  or  mining  property. 
Art.  2.     Mortgage  of  gas  plant. 

ARTICLE  1. 
MORTGAGE  OF  OIL  OR  MINING  PROPERTY. 

§341.  Leasehold  may  be  mortgaged  by  lessee. 

§342.  Lessor  may  mortgage  premises. 

§343.  Mortgage  of  oil  or  mining  lease  in  Pennsylvania. 

§344.  Mortgagor  may  remove  gas,  oil  and  minerals. 

§345.  Llortgagor  in  possession. 

§346.  Mortgagee  in  possession. 

§347.  Mortgagee  in  possession,  English  rule. 

§341.     Leasehold  may  be  mortgaged  by  lessee. 

A  leasehold  estate  may  be  mortgaged,  even  though  it  be  an  es- 
tate only  for  years ;  ^  and  the  same  is  true  of  a  lease  to  take  out 
mineral,  gas  or  oil;  for  such  a  lease  gives  a  freehold  interest 
in  the  land."  The  mortgage  must  be  recorded,  according  to 
the  registiy  laws  of  the  State  where  the  lands  leased  lie ;  and  if 
recording  is  necessary  to  the  validity  of  an  ordinary  mortgage, 
then  a  mortgage  of  a  leasehold  estate  must  be  recorded.^  The 
mortgagee  is  entitled  to  the  benefit  of  any  covenants  in  a  lease, 
as  for  a  renewal;  and  if  there  be  a  renewal,  his  mortgage  at- 

1  Walton  V.  Cronly,  14  Wend.  63 ;  2  Heller  v.   Dailey,   28   Ind.   App. 

Astor   V.    Miller,    2    Paige    Ch.    68;       555;   63  N.  E.   Rep.  490. 
Astor  V.  Hoyt,  5  Wend.  603 ;  Childs  3  Lester  v.  Hardesty,  29  Md.  50. 

V.   Clark.   3   Barb.   Ch.   52;    Broman 
V.  Young,  35  Hun  173. 

365 


366  OIL    AND    GAS. 

taclies  to  the  renewed  lease."*  Where  the  royalties  on  coal  and 
iron  mined  on  the  premises  were  to  he  paid  hefore  the  coal  or 
iron  was  removed  from  the  premises,  it  was  held  that  the  lessee 
was  entitled  to  be  paid  before  the  mortgagee  of  the  lessee,  out 
of  the  fimds  of  the  lessee's  agents  arising  from  a  sale  of  coal 
and  iron  and  paid  into  court.  The  lessee  w^as  treated  as  a  mort- 
gagor in  possession  who  was  entitled  to  the  rents  and  profits  as 
against  the  mortgagee.^  In  Ohio  it  has  been  held  that  a  real 
estate  mortgage,  given  bv  the  lessee,  will  not  bind  the  leasehold 
or  the  lessee's  interest,  because  such  a  leasehold  is  not  real  estate 
or  an  interest  in  the  freehold;  and  the  question  was  left  oj'ien 
whether  a  chattel  mortgage  would  bind  it.^  The  same  was  also 
held  in  ]^ew  York.'^ 

§342.     Lessor  may  mortgage  premises. 

A  lessor  may  mortgage  the  premises  leased,  but  the  mortgage 
will  be  subject  to  the  terms  of  the  lease,  aside  from  the  question 
of  accepting  a  mortgage  without  notice  of  such  lease.  The 
mortgagee  has  only  the  rights  of  the  mortgagor  as  against  the 
lessee,  his  assignee  or  sublessee.*  Until  default  in  the  provi 
sions  of  the  mortgage,  at  least,  the  mortgagor,  if  in  |X)Ssession, 
is  entitled  to  the  rents  and  profits  due  under  the  lease,  and  the 
mortgage  is  not  a  lien  upon  them."  It  makes  no  difference 
whether  the  mortgage  was  executed  before  or  after  the  date  of 
the  lease ;  payment  to  the  mortgagor  is  good  until  the  mortgagee 
interferes."     \Vliere  the  law  of  the  State  is  that  the  mortgagee 


4Slee  V.  Manhattan  Co.,   1   Paige  «  Hemphill  v.  Giles,  66  N.  C.  512. 

Ch-  48.  9  Bank  of  Ogdensburgh  v.  Arnold, 

5  Childs  5.  Hurd,  32  W.  Va.  66 ;  5  Paige  Ch.  38 ;  Fitchburg,  etc., 
9   S.  E.  Rep.   362.  Corp.  v.  Melven,  15  Mass.  268;  Long 

6  Meridian,  etc.,  Bank  V.  McConi-  v.  Wade,  70  Me.  358;  Clarke  v." 
ca,  8  Ohio  Cir.  Ct.  Rep.  442;  4  Ohio  Curtis,  1  Gratt.  289;  McKircker  v. 
Dee.  106.  Hawley,    16   Johns.   289. 

7  Broman  v.  Young,  35.  Hun  173 ;  lo  Trent  v.  Hunt,  9  Exch.  14,  22  : 
First  National  Bank  v.  Dow,  41  Edwards  v.  Woodbury,  1  McCray 
Hun   13.  429;   3   Fed.  Rep.   14. 


MOKTGAGES.  3GT 

shall  not  be  entitled  to  take  possession  of  the  mortgaged  prem- 
ises prior  to  a  foreclosure,  the  mortgagor  may  take  a  valid  as- 
signment of  the  rents  and  profits,  and  the  assignee  may  enforce 
his  right  to  take  them/^  In  such  a  case  the  mortgagor  is 
entitled  to  the  rents  accruing  until  there  has  been  a  foreclosure, 
a  sale,  and  the  title  to  the  mortgaged  premises  has  vested  in  the 
purchaser.  And  where  the  lessee  was  the  purchaser,  but  there 
was  a  delay  of  several  weeks  after  the  sale  before  he  received 
his  deed,  during  which  a  quarter's  rent  fell  due,  it  was  held  that 
the  lessor  (and  mortgagor)  was  entitled  to  such  rent/^  If  the 
mortgagee  take  a  lease  of  the  premises  from  his  mortgagor,  and 
after\vards  the  equity  of  redemption  be  sold  he  can  not  insist, 
as  against  the  purchaser,  that  the  rents  be  set  off  against  the 
mortgage  debt/^  After  a  mortgage  has  been  given,  the  mort- 
gagor cannot  make  a  lease  that  ^^dll  be  binding  on  the  mort- 
gagee.^'* If  the  mortgagee  enter  for  breach  of  the  condition  of 
the  mortgage,  and  accept  rent  from  the  lessee,  the  latter  be- 
comes his  tenant  under  a  tenancy  from  year  to  year,  and  not 
for  the  term  as  fixed  by  the  lease.^^  But  if  he  do  not  so  accept 
rent,  he  may  treat  the  lessee  as  a  trespasser.^"  The  lessee  can 
not  compel  the  mortgagor  to  pay  off  the  mortgage ;  his  remedy 
being  an  ordinary  action  for  damages,  if  he  be  dispossessed  un- 
der it  by  reason  of  its  terms.^'  But  if  the  mortgagee  take  pos- 
session in  a  State  where  no  statute  authorizes  him  to  do  so,  on 
default  of  the  mortgagor,  and  he  takes  it  by  reason  of  tlio  consent 
of  the  latter,  a  verbal  agreement,  of  the  lessee  to  pay  such  mort- 
gagee the  rent  imder  the  lease,  does  not  continue  the  existing 
tenancy,  nor  put  him  in  the  place  of  the  lessor.  If  held  valid  at 
all,  it  must  be  held  to  be  a  new  agreement. ^^  If  the  lessee  cov- 
enants in  the  lease  to  pay  the  royalties  to  the  person  holding  a 

11  Syracuse  City  Bank  v.  Tallman,  is  Hughes  v.   Bucknell,    8  C.   and 
31   Barb.   201;    Argall   v.   Pitts,   78       P.   566. 

N.  Y.  239.  16  Birch  v.  Wright,  1  T.  R.  378; 

12  Clason  V.  Corley,  5  Sandf.  447.  Thunder    v.    Belcher,    3    East   449 ; 

13  Scott  V.  Fritz,  51  Pa.  St.  418.  Rogers  v.  Humphreys,  4  Ad.  and  El. 
See  Taliaferro  v.  Gay,   78  Ky.  496.  299. 

14  McDerniott   v.    Burke,    16    Cal.  "  Costigan    v.    Hastier,     2     Sch. 
580;  Russem  v.  Wanser,  53  Md.  92;  and  Lef.   160. 

Henshaw  v.  Wells,  9  Humph.  568.  isHcgsett  v.  Ellis,  17   Mich.  351. 


3G8  OIJ.     ANI>    GAS, 

mortgage  on  the  premises,  siicli  person  may  maintain  an  action 
against  him  to  recover  snch  royalties,  irrespective  of  the  fact 
that  such  lease  is  under  seal,  under  the  modem  system  of  pro- 
ceedure/^ 

§343.     Mortgage  of  oil  or  mining  lease  in  Pennsylvania. 

In  Pennsylvania  statutes  control  the  mortgaging  of  mining 
leases.  By  the  Act  of  April  27,  1855  ""  it  is  declared  "  to  bs 
lawful  for  every  lessee  for  term  of  years  of  any  colliery,  mining 
land,  manufactors^,  or  other  premises,  to  mortgage  his  or  her 
lease  or  term  in  the  demised  jwemises,  with  all  buildings,  fix- 
tures and  maehineiy  thereon,  to  the  lessee  belong  [ing]  and 
thereunto  appurtenant,  with  the  same  eifect.  as  to  the  lessee's 
interest  and  title,  as  in  the  case  of  the  mortgaging  of  a  free- 
^  hold  interest  and  title  as  to  lien,  notice,  evidence  and  privity  of 
payment."  It  also  pro\'ides  that  the  mortgage  must  "  be  in 
like  manner  acknowledged  and  placed  of  record  in  the  proper 
county,  together  with  the  lease,  and  that  such  mortgage  shall  in 
nowise  interfere  with  the  landlord's  rights,  privity  or  remedy 
for  rent,  and  such  mortgages  may  be  sued  out  as  in  other  cases." 
A  subsequent  Act  (April  3,  1868)  ^^  provides  that  "  in  all 
cases  of  mortgages  upon  leasehold  estates,  the  mortgagees  shall 
have  the  same  remedies  for  the  collection  thereof  which  mort- 
gagees of  real  estate  have  under  the  laws  of  this  commonwealth." 
A  third  Act  (May  13,  1876,)  --'  provides  "  whenever  a  lease  or 
term  of  years  shall  have  heretofore  been  or  shall  hereafter  be 
mortgaged  under  the  Act  of  April  27,  1855,  ...  if  the 
lease  shall  be.  recorded  in  the  deed  books  of  the  proper  county 
before  the  e>xecution  of  the  mortgage  or  shall  thus  be  recorded 

19  Central   Trust  Co.  v.   Berwind-  appointed  in  a   foreclosure   suit,  as 

White  Coal  Co.,  95  Fed.  Rep.  391.  against     the     mortgagee,     on     the 

If  the  lease  be  taken  after  a  mort-  ground  that  he  expended  money  to 

gage  has  been  placed   on  the  prem-  render  them  productive.   G.  B.  Ming, 

ises  by  the  lessor,  it  is   subject  to  Co.  v.  First  National  Bank,  95  Fed. 

the  mortgage,  even  though  the  mort-  Rep.  35;   35  C.  C.  A.  510,  affirming 

gage  was  contested;   and  if  its  va-  89  Fed.  Rep.  449. 

lidity   be   sustained,    he   is   not  en-  -o  P.  L.  369. 

titled  to  claim  the  proceeds  of  the  21  p.  L.  57^  gee.  1. 

mine   while   operated  by   a   receiver  22  p.  L.   160. 


MOKTGAGES.  369 

at  the  time  of  recording  tlie  mortgage,  such  recording  shall  be 
deemed  a  sufficient  compliance  with  the  requirements  of  the 
Act  with  reference  to  recording  such  lease."  And  it  also  pro- 
vides that  a  *'  full  distinct  reference  "  shall  "  be  made  in  said 
mortgage  to  the  book  and  page  where  the  said  lease  is  recorded," 
Under  the  first  Act  it  has  been  held,  in  order  to  give  priority  of 
the  mortgagee  over  an  execution  creditor  of  the  mortgagor,  the 
lease  must  be  recorded  with  the  mortgage.'^  And  under  this 
statute,  recording  the  mortgage  with  a  copy  of  the  lease,  and 
referring  to  the  latter  as  recorded  with  a  former  mortgage,  it 
was  held  to  be  a  substantial  compliance  with  the  act."*  The 
Act  of  1868  applies  to  actions  begun  before  it  was  enacted,  to 
enforce  the  oollecition  of  mortgages  in  the  same  manner  as  it 
provides  for.^^  Of  course,  all  three  statutes  must  be  construed 
in  j}a7n  materia.'^  The  Act  of  1855  applies  to  leases  for  oil 
or  gas,  although  enacted  before  either  was  discovered."^  The 
mortgage  and  lease  need  noJ:>  bear  the  same  date,  if  recorded  at 
the  same  time  in  the  same  connection. "'^  If  the  mortgage  cover 
tlie  personal  property  on  the  leasehold  premises,  the  mortgagee 
may  follow  and  recover  it  wherever  he  finds  it,  notwithstanding 
his  debt  is  not  due  at  the  time  he  claims  it.""*  Neither  the  Act  of 
1855  nor  that  of  1868  embrace  a  leasehold  vesting  a  freehold  in- 
terest in  the  mortgagor.''*'*  The  Acts  of  1855  and  1876  apply  to 
a  leasehold  interest  in  a  city  lot  for  a  term  of  years,  the  lessee 
paying  a  yearly  rent  and  being  required  to  erect  a  building 
thereon.^^  The  word  "  fixture"  as  used  in  the  Act  of  1855  is 
not  to  be  constimed  in  its  strict  sense,  but  in  a  comprehensive 
way,  and  includes  mine  cases  and  all  such  machinery  and  ap- 

23  Sturtevant's  Appeal,  34  Pa.  St.  27  Gill    v.    Weston,     110    Pa.    St. 

149;    Glading  v.    Flick,   88   Pa.   St.  312;  1  Atl.  Rep.  921. 

460.     See    First    National    Bank   v.  28  Gill    v.    Weston,    110    Pa.    St. 

Sheafer,    149   Pa.    St.    236;    24   Atl.  312;  1  Atl.  Rep.  921. 

Rep.   221.  29  Gill    V.    Weston,     110    Pa.    St. 

2iLadley  v.  Creigliton,  70  Pa.  St.  312;  1  Atl.  Rep.  921. 

490.  30  Railroad  Co.  v.  Sanderson,   109 

25Hosie  V.  Gray,  71   Pa.  St.  198.  Pa.  St.  583. 

26  Glading   v.    Friek,    88    Pa.    St.  si  Hilton's    Appeal,    116    Pa.    St. 

460.  351;   9   Atl.   Rep.   342. 


370  OIL    A>,'D    CAS. 

pliances  which  are  essential  to  the  operation  of  a  colliery,  not, 
however,  prop^timher.^^ 

§344.     Mortgagor  may  remove  gas,  oil  and  minerals. 

The  mortgagor  of  gas,  oil  or  mining  lands  may  extract  the 
oil  or  gas  or  remove  the  minerals,  and  convert  them  into  money, 
if  the  gas  or  oil  wells  or  mine  operated  w^ere  dug  or  opened  at 
the  time  the  mortgage  was  placed  upon  the  premises;  but  if 
they  were  not,  tlien  the  lands  cannot  be  so  worked,  for  it  is 
waste  as  against  the  mortgagee  to  permit  it,  even  though  the 
land  was  purchased  as  mineral  land.^^  To  remove  and  convert 
into  money  minerals  underlying  the  soil  is  not  waste,  unless  it 
w^as  necessary  to  penetrate  the  soil  to  secure  such,  minerals.^* 
The  only  restriction  on  the  mortgagor  is  that  he  must  not  en- 
danger or  seriously  impair  the  lien  of  the  mortgage. ^^  In  one 
case,  after  decree  of  foreclosure  and  execution  issued,  the  mort- 
gagor quarried  stone  from  a  quarry,  already  open ;  and  it  was 
held  that  as  between  him  and  the  mortgagee,  the  latter  was  en- 
titled to  the  stone.^'' 

§345.     Mortgagor  in  possession. 

In  this  country  the  mortgagor  is  usually  entitled  tO'  possession 
after  default,  and  until  a  foreclosure  of  the:  mortgage  and  sale  of 
the  mortgaged  premises,  unless  a  receiver  be  appointed ;  and 
also  until  the  year  of  redemption  has  expired,  where  a  redemp- 
tion is  allowed.  Where  a  statute  provided  that  the  mortgagor 
should  be  entitled  to  the  possession  of  lands  or  tenements  sold 
under  execution,   until  the  expiration  of  fifteen  months  from 

32  Baker  v.  Atherton,  15  Pa.  Co.  35  Duff's  Appeal,  21  W.  N.  C.  491; 
Ct.  Rep.  471.  Ward  v.    Carp   River    Iron   Co.,   50 

33  Ward  V.  Carp  River  Iron  Co.,  Mich.  522;  15  N.  W.  Rep.  889;  Ver- 
47  Mich.  ^;   10  N.  W.  Rep.  109.  valen    v.    Older,    4    Halst.     (N.    J.) 

34  Duff's  Appeal,  21  W.  N.  C.  491 ;  Ch.  98. 

(apner  V.  Mining;  Co.,  2  Greens.   (N.  36  American    Trust   Co.    v.    North 

J.)   Ch.  467;  Childs  v.  Hurd.  32  W.  Quarry  Co.,    31   N.  J.   Eq.   89.     See 

Va.  66;  9  S.  E.  Rep.  362;  Vervalen  Leport   v.   Mining    Co.,   3   N.   J.   L. 

V.  Older,  4  Halst.    (N.  .1.)    Ch.  98;  Jr.    280. 
Leport   V.   Mining   Co.,    3   N.   J.   L. 
Jr.  280. 


MORTGAGES.  3Yl 

the  time  of  the  sale,  and  use  and  enjoy  the  premises  withtjiit 
being  guilty  of  waste,  in  the  same  manner  and  for  the  like  pur- 
poses, in  which  and  for  which  they  were  used  and  applied  prior 
to  the  sale,  doing  no  permanent  injury  to  the  freehold,  it  was 
held  tlie  working  of  the  open  mines  and  the  removal  of  ore  from 
them  was  permitted  by  the  statute ;  but  not  the  opening  of  new 
mines.^^  '*  The  judgment  debtor  was  entitled  to  continue  the 
working  of  a  mine  in  a  reasonable  and  prudent  manner,  having 
regard  to  the  customary  working  before  tlie  sale,  and  to  dispose 
of  the  proceeds.  If  the  mining  was  improper,  excessive  or 
wasteful,  it  might  at  any  time  have  been  restrained,  and  the 
parties  responsible  for  and  held  liable  for  the  damages."  '^^ 
Where  the  mine  underlies  a  farm,  which  has  been  mortgaged 
for  the  purchase  money,  any  necessary  and  proper  use  of  the 
farm  in  carrying  on  the  mining  operations  is  not  a  waste. ^'^ 
But  if  the  operations  proceed  so  far  as  to  endanger  the  security, 
then  the  holder  of  it  is  entitled  to  an  injunction  restraining  the 
further  operation  of  the  mine.*** 

§346.     Mortgagee  in  possession. 

Where  the  mortgagee  of  a  mining  property  goes  intO'  posses-- 
sion  of  the  mortgaged  premises,  by  reason  of  a.  default  in  pay- 
ment, he  has  a  right  to  work  the  mines  that  are  open,  but  he  is 
not  bound  to  do  so.  He  ought  not  to  advance  more  money  in 
a  mining  speculation  than  a  prudent  man  would  do;  for  if  he 
does,  and  loses  it,  he  cannot  charge  the  loss  up  to  the  mortgagor.*^ 

37  Ward  V.  Carp  River  Iron  Co.,  it  thei-eon,  it  was  held  that  the 
47  Mich.  65;   10  N.  W.  Rep.  109.  stone  thus  quarried  was  subject  to 

38  Ward  V.  Carp  River  Iron  Co.,  the  lien  of  the  mortgage.  American 
50  Mich.  522;  15  N.  W.  Rep.  889.  Trust  Co.  v.   Quarry  Co.,   31  N.   J. 

39Capner    v.    Mining    Co.,    2    Gr.  Eq.  89.     See  Leport  v.  Mining  Co., 

Ch.    (N.  J.)    467.  3  N.  J.  L.  J.  280. 

40  Appeal   of   Duff,   21    W.   N.    C.  4i  Rowe   v.    Wood,    1    J.    and   W. 

(Pa.)   491.     A  stone  quarry  may  be  555;   Elias  v.  Snowden  Slate  Co.,  4 

operated  by  the  mortgagor.     Verva-  App.  Cas.   455;    18  L.  J.    Ch.   811; 

len  V.  Older,  4  Halst.  Ch.  98.  26  W.  R.  869;  38  L.  T.  871;  Hughes 

See  where    an  insolvent   corpora-  v.  Williams,  12  Ves.  493;  Thorney- 

tion,  after  decree  in  foreclosure  and  croft  v.  Crockett,  16  Sim-  445;  2  H. 

an  execution  issued  against  it,  quar-  L.  Cas.  239;   12  Jur.  1081. 
ried  stone  on  the  premises  and  left 


372  OIL    AND    GAS. 

In  such  an,  instance  the  mortgagee  is  entitled  to  his  expenses  in 
necessary  repairs  of  the  mine,  as  "  just  allowances."  *^  If  the 
security  is  insufficient  to  satisfy  the  mortgage,  the  mortgagee 
may  ojien  new  mines  on  the  mortgaged  premises,  and  tlie  court 
will  allow  him  his  costs  in  so'  doing.^^  If  the  opening  of  a  new 
mine  results  in  a  loss,  he  must  pay  it ;  if  in  a  profit,  the  mort- 
gagor is  entitled  to  a  credit  on  his  deht  to  the  extent  of  the 
amount  of  the  profit,**  But  if  tlie  security  is  sufficient,  then 
the  mortgagee  in  possession  may  not  open  a  new  mine.*^  If 
the  mortgagor  may  not  open  a  new  mine,  his  mortgagee  in  pos- 
session may  not.  The  mortgagee's  right  in  the  premises  is 
measured  by  the  rights  of  the  mortgagor  at  the  time  the  mort- 
gage is  executed.**'  In  case  of  a  default  in  the  mortgage,  the 
mortgagee,  instead  of  taking  possession,  may  apply  for  a  re- 
■ceiver  to  operate  the  mine.,  for  a  colliery  is  a  business.*^  But 
the  mortgagor  cannot  secure  the  appointment  of  a  receiver  when 
the  mortgagee'  is  in  possession,  even  though  he  alleges  miscon- 
duct on  the  latter's'  part ;  for  the  mortgagor  cannot  in  that  way 
turn  out.  the  mortgagee  so  long  as  any  of  the  debt,  remains  un- 
paid.*^ If  the  mine  be  flooded  by  the  careless  conduct  of  the 
mortgagee  in  working  it,  he  will  be  liable  to  make  good  the 
loss.***  There  ought  to  be  inserted  in  every  mortgage  of  a  colliery, 
and  this  isi  also  true  of  every  mortgage  on  oil  or  gas  lands,  a 
clause  enabling  tlie  mortgagee,  in  case  he  takes  possession,  or, 
where  an  agreement  as  to  possession  is  not  allowed,  to  apply 
for'  and  have  a  receiver  appointed  to  work  the  mine,  if  the  mine 

42  Tipton    Green    Colliery    Co.    v.  *e  Elias   v.    Griffiths,    8    Cli.    Div. 

Tipton  Moat  Co.,  7  Ch.  Div.  192;  47  ,521;    40    L.   J.   Ch.   806;    26   W.   R. 

L.  J.  Ch.   152;   26  W.  R.  348.     See  869;    38   L.   T.    871;    S.    C.   4   App. 

Millett  V.  Davey,  31   Beav.  470;  32  Cas.  454;  48  L.  J.  Ch.  203. 

L.  J.  Ch.  122;   7  L.  T.  551;   11  W.  47  Jgfferys  v.  Smith,  1  J.  and  VV. 

U.  170;   9  Jur.    (N.  S.)    92.  298;  Gloucester  Bank  v.  Rudry  Col- 

« Hughes   V.    Williams,    12    Ves.  liery  Co.   [1895],  1  Ch.  629;   Camp- 

4.»3.  bell  V.  Lloyd's  Bank   [1891],   1   Ch. 

44  Millett  V.  Davey,  supra.  136,  note;   Peck  v.  Trinsmaran  Co., 

45  Thorneycroft    v.     Crockett,     16  z  Ch.  Div.  115;  24  W.  R.  301. 
Sim.  445;  2  H.  L.  Cas.  239;  12  Jur.  4.s  Rowe    v.    Wood,    1    J.    and    W. 
1081;   Hood  v.  Easton,  2.  Giff.  602;  5.55;  2  J.  and  W.  553. 

2  ,Jur.  (N.  S.)  729;  27  L.  T.   (0.  S.)  4n  Taylor  v.  Mostyn,  33   Ch.  Div. 

295;  4  W.  R.  575.  220. 


MORTGAGES. 


he  a  material  portion  of  the  security.^"  If  the  mortgage 
is  of  the  interest  of  one  co-tenant,  the  mortgagee  is  entitled  to 
the  same  account  as  the  co--tenant.  himself.^^  If  the  mortgagee 
in  possession  of  a  colliery  improperly  work  it,  his  mortgagor 
may  obtain  an  injunction  to  prevent  the  wrong  working  of  it, 
though  not  the  proper  working.^"  As  against  a  mortgagee  in 
possession,  a  mortgagor  is  entitled  to  an  accounting;  and  in 
such  an  action  the  mortgagee  must  account,  for  not  only  all  he 
has  actually  received,  but  for  what  he  might  have  received  but 
for  his  gross  mismanagement  or  wilful  neglect.^^ 


fc)^ 


§347.     Mortgagee  in  possession,  English  rule. 

We  take  the  following  statement  of  the  law  in  England  with  ^ 
reference  to  mines,  where  the  mortgagee  is  entitled  to  jx)ssession 
of  the  premises  after  default  made,  from  Bainbridge  on 
Mines :  ^*  "  A  mortgagee  has  in  law  an  absolute  estate  in  the 
lands  mortgaged,  and  is  entitled,  after  default  in  payment  of 
the  mortgage  debt,  to  take  immediate  possession,  and  to  receive 
the  rents  and  profits  of  the  mortgaged  estate.^"  And  as  regards 
the  mines  and  minerals  within  or  under  the  lands  comprised 
in  the  mortgage,  he^  will  be  entitled  to.  work  any  mines  or  quar- 
ries which  have  been  already  opened ;  but,  of  course,  he  is  not 

bound  to  do  so at  least,  in  the  general  case;  and  in  no  case 

ought  he  to  advance  more  mone}'  in  a  mining  speculation  than 
a  p'rudent  owner  would  do.  For,  as  Lord  Eldon  very  justly 
observed,  if  he  were  owner  he  might  speculate  for  himself  as 
much  as  he  pleased  —  sciJ.,  because  the  advantages,  whatever 
they  might  be,  would  be  his,  and  if  the  speculation  turned  out 
unfortunate,  he  would  bear  the  loss ;  but  could  a  mortgagee  be 

50  Norton  v.  Cooper,  5  De  G.  M.  and  F.  1;  Taylor  v.  Mostyn,  25  Ch. 
and  G.   728;   25  L.  J.   Ch.   121;   23       Div.  48. 

L.  T.    (0.  S.)    125;  2  W.  R.  362.  53  Hughes    v.    Williams.    12    Ves. 

51  Bentley  v.  Bates,  4  Y.  and  C.  493;  Norton  v.  Cooper.  25  L.  J.  Ch. 
Exch.  182;  9  L.  J.  Exch.  30;  4  Jur.  121;  5  De  G.  M.  and  G.  728;  23 
552.  Ju.  T.   (0.  S.)   125;  2  W.  R.  362. 

.^2  Taylor  v.  Mostyn,  23    Ch.  Div.  54  Pp.    32-38    (5th   ed.). 

o83;    53    L.    J.    Ch.    89;    Sheehy    v.  ss  \Yilliams  v.  Medlicott  (1819).  6 

Muskerrv,   1  H.  L.  Cas.  576;   7  CI.       Price  496. 


374  OIL    AND    GAS, 

required  to  risk  his  own  fortune  in  suck  a  speculation,  and  to 
incur  the  hazards  of  an  adventure  the  benefits  of  which  would 
redound  to  the  mortgagor  ?  ^*^  A  mortgagee  in  possession  being 
accountable  for  wilful  default,  it  seems  to  follow,  that  if  the 
property  in  moi-tgage  be  a  mineral  estate,  the  mortgagee  will  be 
bound  to  make  the  most  reasonable  use  of  the  estate  —  sell.,  be- 
cause the  nature  of  the  estate  should  have  been  coutemplated 
before  he  took  possession ;  and  at  the  same  time,  if  he  exceed 
the  expenditure  and  risk  demanded  from  a  prudent  owner,  ho 
will  not  be  allowed  such  unnecessary  or  extravagant  expenses, 
but  will  speculate  at  his  own  risk.  Where  a  mortgage  term  of 
500  years  had  been  created  in  lands'  by  the  fee  simple  owner 
of  the  lands ;  and  he  subsequently  opened  a  slate  quarry  in  the 
^ands,  and  worked  such  quarry  (through  certain  lessees  thereof 
who  paid  him  a  royalty  of  l-18th  the  slate  gotten)  ;  and  after- 
***  wards  the  mortgagees  entered  —  the  court  said,  that  they  could 
(although  only  termors)  continue  the  working  of  that  slate 
quarry,  although  it  had  not  been  opened  at  the  date  of  the  crea- 
tion of  the  term.  And  it  appearing  that,  the  mortgagees  had 
obtained  an  order  absolute  of  foreclosure,  they  were  held  to 
have  become  termors  absolute  for  the  residue  of  the  500  years."*' 
In  Hughes  v.  Williams,^^  a  mortgagee  in  possession  had  opened 
a  slate  quarry  at  an  expense  of  681. —  and  had  made  21.  out 
of  the  quarry — ■  i.  e.,  he  had  sustained  a  loss  of  661. ;  and  the 
court  left  him  to  bear  that  loss,  as  he  had  speculated  at  his  own 
peril.  But  in  Tipton  Green  Colliery  Co.  v.  Tipton  Moat  Co.,^^ 
where  the  defendants  were  unpaid  vendors  of  a  leasehold  col- 
liery, and  they  were  in  possession  (in  respect  of  their  lien  for 
the  unpaid  purchase  money),  and  had  expended  divers  sums  of 
money  upon  the  colliery  (in  necessary  repairs  and  otherwise)  ; 
and  the  plaintiffs  (the  purchasers)  claimed  to  redeem  them  — 
the  defendants  were  allowed   (as  a  matter  of  course,  i.  e.,  as 

-•G  Rowe  V.  Wood  (1820),  1  J.  and  Thorneycroft  v.  Crockett  (1848),  16 

W.   315,    555.  Sim.    445;    12    Jur.    1081;    2    H.    L. 

57  Elias    V.     Snowdon     Slate     Co.  Cas.  239. 

(1870),  4  App.  Cas.   455;  48  L.  J.  so  (1877)    7  Ch.  D.  192;  47  L.  J. 

Ch.  811 ;  41  L.  T.  289;  28  W.  R.  54.  Ch.  152;  26  W.  R.  348. 

r<8(1806)     12    Vcs.    49G ;     and    see 


MORTGAGES.  375 

'^  just  allowances  ")  all  their  expenses  on  necessary  repairs,  but 
not  anything  for  expenses  beyond.  In  Millett  v.  Davey,*^°  the 
plaintiffs  were  mortgagees  in  possession  of  the  defendant's  one 
equal  undivided  moiety  of  certain  lands';  and,  in  conjunction 
with  the  o^mer  of  the  other  undivided  moiety,  they  made  a 
lease  of  the  mines,  granting  also  certain  surface  rights ;  and 
under  the  lease,  a  large  quantity  of  the  minerals  had  been  got- 
ten, but  at  a  loss  —  and  a  considerable  part  of  the  surface  also 
had  been  damaged,  in  the  exercise  of  the  surface  rights ;  and 
the  lessees  paid  up  all  royalties  accrued  due,  and  abandoned 
the  mine;  and  the  plaintiffs  obtained  a  judgment  for  foreclosure 
against  the  defendant  —  the  security  being  proved  to  have  been 
insufficient  at  the  time  the  mortgagees  entered  —  the  court 
said,  that  they  were  not  to  be  charged  with  the  value  of  the  coal 
(the  defendant's  moiety  thereof)  which  had  been  gotten  by  the 
lessees,  but  only  with  the  royalties  (the  defendant's  moiety 
thereof)  received  by  the  plaintiffs,  and  not  at  all  for  the  surface 
damage. 

"  In  a  mortgage  of  mines,  there  would  usually  be  inserted 
special  clauses  enabling  the  mortgagees,  in  case  they  took  pos- 
session (or  become  entitled  to  take  possession),  to  appoint  a  re- 
ceiver and  manager,  and  to  expend  moneys  on  the  working  and 
development  of  the  mines  (including  the  oj^ening  of  the  new 
mines)  —  and  in  such  a  case,  the  mortgagees  would  be  allowed 
their  lawful  expenditure  with  interest  thereon.®^  And  the  like 
clauses  might  be  usefully  inserted  in  eveiy  mortgage  of  lands 
containing  mines,  where  the  mines  were  a  material  portion  of 
the  security ;  and  as  regards  keeping  accounts  of  the  mortgagees' 
workings,  tlie  clauses  should  provide  for  the  mortgagor  having 
ins|3ection  of  the  books  of  the  oollier\',  but  not  (save  at  the  ex- 
pense of  the  mortgagor)  for  the  mortgagees  rendering  him  any 
account  of  the  workings.*'" 

"  And,  generally,  as  regards  the  opening  of  new  mines,  it  ap- 
pears the  mortgagee  may  do  so,  if  his  security  is  insufficient ; 

60(1862)    31   Beav.  470;   32  L.  J.  G.  M.  and  G.  728;  25  L.  J.  Ch.  121; 

Ch.  122;  7  L.  T.  551;  11  W.  R.  176;  23  L.  T.    (0.  S.)    125;  2  W.  R.  362. 

9  Jur.    (X.  S.)    92.  62 /ft^d. 

61  Norton  v.  Cooper   (1854),  5  De 


376  OIL    AND    GAS. 

and  if  in  sucli  a  case  he  acts  bona  fide,  the  court  will  not  restrain 
him.*^^  But  he  opens  the  new  mines  at  his  own  peril,  that  is  to 
say  —  if  the  working  results  in  a  loss,  and  if  the  working  re- 
sults in  a  profit,  the  profit  goes  in  towards  the  discharge  of  his 
mortgage  deht.^*  But,  nota  bene,  a  mortgage  of  lands  (in  which 
are  mines),  if  his  mortgage  is  by  demise  only  (t.  e.,  if  he  is  en- 
titled only  to  a  term  of  years  in  the  lands),  may  not  ojion  new 
mines  —  for  a  tennor  may  not  do  so,  unless  he  is  without  im- 
peachment of  waste.  But  just  as  any  termor  entitled  absolutely 
may  work  the  open  mines,  so  may  a  termor  who  is  a  mortgagee,**^ 
at  all  events,  if  his  security  is  insufficient.  And  if  the  mort- 
gagor (or  other  person  entitled  under  him  subject  to  the  mortr 
gage  term)  should,  during  the  continuance  of  the  mortgage, 
lawfully  open  a  new  mine  within  or  imder  the  lands  demised 
by  the  mortgage  deed,  the  mortgage  termor  may  thereafter  work 
such  ne^vly  opened  mines  —  at  least,  if  his  security  be  insuffi- 
cient. And  all  the  like  observations  are  applicable  also  to  a 
new  quarry  —  it  being  nevertheless  understood  that  the  quarry 
has  been  opened  ■ —  that  is  to  say,  for  the  purpose  of  being 
worked  as  a  commercial  speculation,  and  not  merely  for  the  pur- 
pose of  digging  a  few  blocks  of  stone  thereout  for  some  specific 
private  purpose.""  But  it  rather  appears-,  that  if  the  security 
is  not  insufficient,  the  mortgagee  has  no  right  to  open  new  mines, 
and  that  if  he  do  open  and  work  them,  he  will  be  charged  with 
all  receipts  from  the  mines,  without  any  allowance  for  the  ex- 
pen'ses  in  opening  and  working  them."^ 

"The  mortgagee  of  a  colliery,  in  lieu  of  taking  possession  of 
the  colliery  —  whereby  he  incurs  the  liabilities  above  indicated 

63  Hughes  V.  Williams   (1806),  12  Cas.  454;   48  L.  J.   Cli.  811;   41  L. 

Ves.  493.  T.  289;  28  W.  R.  54. 

c4Millett    V.    Davey     (1862),    31  66  Ellas  v.  Griffiths   (1878),  8  Ch. 

Beav.  470,  at  p.  476;   32  L.  J.  Ch.  D.   521;   S.  C.    (sub  nom.)    Elias  v. 

,122;  7  L.  T.  5^1;   11  W.  R.  176;  9  Snowdon   Slate  Co.    (1879),  4   App. 

Jur.    (N.   S.)    92.  Cas.  454. 

65  Elias  V.  Griffiths   (1878),  8  Ch.  67  Thorney croft        v.         Crockett 

D.  521;  46  L.  J.  Ch.  806;  48  L.  J.  (1848),  16  Sim.  445;  12  Jur.  1081; 

Ch.   203;    26    W.   R.   869;    38  L.   T.  2  H.  L.   Cas.  239;    Hood  v.   Easton 

871;     S.    C.     (sub    nom.).    Elias    v.  (1856) .  2  Giflf.  692 ;  2  Jur.   (N.  S.) 

Snowdon   Slate   Co.    [1879],   4   App.  729,  917;   27  L.  T.    (O.   S.)    295;   4 

W.  1..  575. 


MORTGAGES.  377 

—  ought  to  appoint  a  re<?eiver  (who  will  be  the  mortgagor's 
agent)  ;  and  if  a  manager  also  should  be.  necessary,  he  may  ob- 
tain an  order  for  the  appointment  of  a  receiver  and  manager ; 
and  he  may  obtain  snch  an  order  even  after  he  has  entered  into 
possession.''^  And  the  reason  why  the  court  ap|X)ints  a  receiver 
and  manager  is,  because  the  security  would  otherwise  go  to  ruin  ; 
and  (where  tlie  colliery  is  a  leasehold  one)  it  might  even  be 
forfeited  by  the  lessor  —  sciL,  for  neglect  to  work  or  for 
some  other  breach  of  the  covenants  in  the  lease ;  ^^  and  the  mere 
fact  that  the  collieiy  business  is  not  si>ecifically  comprised  in 
the  mortgage  will  not  make  any  difference,  a  collieiy  being  a 
business/" 

"  In  Rowe  v.  Wood,"^  the  mortgagees  were  in  possession,  and 
the  plaintiff  (the  mortgagor)  was  tlie  party  who  applied  for  a 
receiver  and  manager  of  the  mine  —  alleging  misconduct  on  the 
part  of  the  defendants  in  the  management;  but  tlie  court,  said, 
that  the  plaintiff  could  not  (in  that  way)  turn  out  the  mort- 
gagees from  the  possession  so  long  as  they  alleged  that  they  were 
unpaid  (even  a  sixj>ence  of)  their  mortgage  debt;  and  all  that 
the  plaintiff  (as  mortgagor)  was  entitled  to,  was,  to  require  the 
defendants  to  keep  the  proper  accounts  and  to  j>ermit  his  inspec- 
tion thereof. 

"  In  IS^orton  v.  Cooper,'^"  the  mortgage  was  of  mines,  with 
power  for  the  mortgagees  to  enter  and  develop  the  mortgaged 
premises,  and  to  exi>end  money  for  that  jmrpose ;  and  the  mort- 
gagor, suing  for  redemption,  claimed  to  charge  the  mortgagees 
with  an  occupation  rent,  and  also  to  disallow  them  all  their  ex- 
penditure —  lx)th  which  claims  the  mortgagees,  of  course,  re- 
sisted ;  and  they  also  refused  accounts,  save  at  the  expense  of  the 
mortgagor.  The  accounts  as  taken  in  the  suit  showed  — 
16,654Z.    owing  on    the   mortgage   for   principal    and    interest ; 

6s  Campbell      v.      Lloyd's      Bank.  "o  Jefferys   v.   Smith    (1820),   1  J. 

cited    in    [1891]    1    Cli.    136,    note;  and    W.    298;    Gloucester    Bank    v. 

Peck  V.   Trinsmaran  Co.,   2   Ch.   D.  Riidry  Colliery  Co.,  supra. 

115;  24  W.  R.  361.  7i  (1820)      1     J.     and     W.     315; 

69  Gloucester  Bank  v.  Rudry  Col-  (1822)   2  J.  and  W.  553. 

liery  Co.  [1895].  1  Ch.  629;  64  L.  J.  72(1854)   5  De  G.  M.  and  G.  728; 

Ch.    451;    72  L.    T.    375;    43   W.   R.  25  L.  J.  Ch.   121;   23  L.  T.    (O.  S.) 

486;  2  Manson  223;  12  R.  183.  125;  2  W.  R.  362. 


378  OIL    AND    GAS. 

60,02 7Z.  owing  as  moneys  properly  expended  in  developing 
the  mines;  and  3,74:71.  owing  as  moneys  properly  paid  in  re- 
deeming a  previous  mortgage;  and  74,637/.  received  as  profits 
from  the  mines  —  leaving  5,790Z.  still  owing  to  the  mort- 
gagees ;  and  the  court  allowed  the  whole  exi^enditure,  and  also 
gave  the  mortgagees  their  costs  of  suit — holding  that  their 
conduct  had  not  been  vexatious,  merely  because  they  refused  the 
accounts  save  on  the  mortgagor's  first  paying  for  the  expense  of 
the  accounts;  and  the  court  refused,  of  course,  to  charge  the 
mortgagees  with  any  occupation  rent. 

"  In  Bentley  v.  Bates, ^^  where  there  were  two  lessees  of  a 
mine,  and  tliey  were  working  it  in  quasi-partnership,  and  the 
plaintiff  was  the  mortgagee  of  the  interest  of  one  of  the  lessee- 
partners,  and  claimed  an  account  against  the  defendant  who  was 
the  other  lessee  (the  mortgagor  being  also  a  co-defendant)  — 
thetcourt  said,  tliat  the  plaintiff  was  entitled  to  all  the  rights 
of  his  mortgagor,  and  was  therefore  entitled  to  have  an  account 
of  the  profits  (and  generally  of  the  management  by  the  defend- 
ant) of  the  mine;  and  that  he  need  not,  for  that  purpose,  ask 
for  a  dissolution  of  the  partnership,  as  he  would  have  been 
obliged  to  do  in  the  case  of  an  ordinary  mercantile  business  — 
for  a  co-tenancy  (or  joint  partnership)  of  lands  is  not  to  be  de- 
termined by  a.  partition  of  the  lands,  liefore  an  account  can  l>e 
taken  on  behalf  of  one  of  the  co-tenants  against  the  other  or 
others  of  them. 

"In  Taylor  v.  Mostyn  ^*  and  Mostyn  v.  Lancaster,^^  certain 
lands  containing  coal  mines  (which  in  1829  had  been  leased  by 
the  testator  for  a  term  which  would  expire  in  1848)  were  devised 
to  M.  for  his  life,  with  remainder  to  M.'s  first  son  in  tail,  and  M. 
was  empowered  to  lease  the  mines  at  his  discretion :  And  M. 
(being  in  possession  as  tenant  for  life  under  the  will)  leased  the 
mines  in  1843  (for  ninety-nine  years)  by  way  of  mortgage  to 
C.  for  securing  a  principal  sum  and  interest,  and  with  powers 

^•"(1840)  4  Y.  and  C.  Exch.  182;     75  23  Ch.  Div.  583;  51  L.  J.  Ch. 
9  L.  J.  Exch.  30;  4  Jur.  552.       606:  46  L.  T.  648;  48  L.  T.  715;  31 

74(1882)  23  Ch.  D.  583;  53  L.  J.   W.  R.  3,  686. 
Ch.  89;  49  L.  T.  483;  32  W.  R. 
25G. 


MORTGAGES.  379 

of  working  the  mines  similar  to  those  contained  in  the  1829 
lease  —  which  mortgage  was  afterwards  (in  1850)  transferred 
to  X.,  to  whom  M.  was  already  otherwise  very  largely  indebted ; 
and  M.  at  the  same  time  mortgaged  also  his  life  estate  to  X.  (or 
to  a  nominee  of  X.)  ;  and  (by  a  lease  in  1850)  M.  demised  the 
mines  to  X.'s  nominee  for  forty  years  at  a  dead  rent,  and  at 
royalties  —  and  the  last  mentioned  lease  was  duly  confirmed 
by  M.'s  first  son  (who  had  in  the  meantime  attained  his  age  of 
twenty-one  years,  and  had  duly  barred  the  tail)  :  x\fterwards, 
the  life  estate  of  M.,  and  the  fee  simple  remainder  of  his  first 
son,  became  vested  in  Mostyn  and  others  (the  defendants  in 
Taylor  v.  Mostyn,  and  who  were  also  the  plaintiffs  in  Mostyn 
V.  Lancaster)  ;  and  tlie  1850  lease  was  assigned  to  Taylor  and 
others  (tlie  plaintiffs  in  Taylor  v.  Mostyn),  and  in  them  (or  in 
the  plaintiff  Taylor  alone  as  a  nominee  for  them)  were  also 
vested  the  1843  lease  and  the  mortgage  of  the  life  estate.  And 
the  plaintiffs  in  Taylor  v.  Mostyn  (by  virtue  of  the  lease  of 
1850)  sublet  the  mines  to  the  defendants  in  Mostyn  v.  Lan- 
caster, and  Taylor  at  the  same  time  (and  by  virtue  of  the  lease 
of  1843)  leased  the  mines  to  the  same  defendants  for  a  term 
limited  to  expire  in  1000 :  And  the  action  of  Taylor  v.  Mostyn 
being  for  foreclosure,  and  the  action  of  Mostyn  v.  Lancaster 
being  for  an  injunction  to  restrain  the  removal  of  the  pillars 
of  coal  in  tlie  demised  mines  —  The  court  held  —  That  the 
lease  of  1843  was  a  valid  exercise  of  the  leasing  power  "** —  and 
consequently  that  the  plaintiffs  in  Taylor  v.  Mostyn  (unless 
they  were  redeemed)  might  foreclose;  and  That  the  lease  of 
1850  (or  the  sublease  derived  out  of  it)  did  not  (upon  its  true 
construction)  authorize  the  getting  of  the  pillars,  save  with  the 
consent  of  M.  (which  consent,  so  far  as  regards  the  past  work- 
ings, had  not  been  obtained),  although  (on  the  expiration  of  the 
1850  lease,  and  during  the  then  residue,  if  any,  of  tlie  life  of 
M.)  the  consent  of  M.  to  the  working  of  the  pillars  of  coal 
under  the  lease  of  1843  had  been  (in  effect)  already  given  by 
M. —  and,  consequently,  that  the  defendants  must  (save  during 
such  residue  as  aforesaid,  if  any  of  the  life  of  M.)  be  restrained 

76  Sheehy  v.  Muskerry    (1848),   1       Mad.  and  R.  493;  LI.  and  Gt.  Plunk 
H.    L.    Gas.   576;    7    CI.   and    F.    1;       568. 


380  OIL    AND    GAS. 

from  removing  the  pillars  of  coal.  And  at  a  subsequent  stage 
of  litigation,"  tlie  plaintiffs  in  Taylor  v.  Mostyn,  alleging  that 
(owing  to  the  decision  in  Mostyn  v.  Lancaster)  their  security 
was  of  vastly  less  value  than  tlie  amount  of  their  moitgage  debt, 
neglected  to  prosecute  their  foreclosure  decree;  and,  on  the  ap- 
plication of  the  defendants,  the  court  directed  them  to  do  so, 
the  order  exp'ressing  that  it  was  made  at  the  express  direction 
of  the  defendants  —  so  that  if  the  costs  of  the  further  prosecu- 
tion of  the  decree  should  be  found  to  have  been  (without  any 
good  purpose)  forced  on  the  plaintiffs,  the  defendants  might 
be  ordered  personally  to  pay  such  costs ;  and  the  order  gave  the 
plaintiffs  liberty  to  apply  for  a  stay  of  all  further  proceedings. 
However,  while  the  decree  was  being  further  prosecuted,^*  the 
defendants  obtained  from  the  court  a  declaration,  that  (as  re- 
gards all  the  pillars  of  coal  wrongfully  removed  by  the  mort- 
gageerleSfeees)  the  plaintiffs,  as  mortgagees,  were  to  be  charged 
with  the  full  value  of  such  coal,  less  only  the  cost  of  bringing  it 
to  bank  (that  is  to  say,  allowing  nothing  for  tlie  cost  of  severing 
the  coal)  ;  and  it  rather  appearing  that  a  flooding  of  the  mines 
had  been  occasioned  by  the  ^vrongful  removal  of  such  pillars, 
the  court  directed  an  inquiiy  as  to  that  if  (upon  the  result  of 
that  inquiry)  the  damage  from  the  flooding  should  be  traceable 
to  the  wrongful  removal  of  the  pillars  of  coal,  the  plaintiffs,  as 
mortgagees,  would  be  chargeable  with  that."  ^® 


AKTICLE  2. 


GAS  PLANT. 

§348.     Mortgage  of  gas  plant. 

§348.     Mortgage  of  gas  plant. 

A  francliise  giving  a  right  to  "  construct,  own,  maintain  and 
operate  "  a  gas  or  water  plant  may  be  mortgaged ;  and  a  mort- 
gage on  such  a  franchise  of  a  plant  in  process  of  construction 
carries  the  plant  with  it.*^     It  will  also  include  tangible  proi> 

77(1883)    25  Ch.  D.  48.  of  an  oil  lease  in  possession.    Fuher 

78  33    Ch.   Div.   226.  v.  Buckeye  Supply  Co.,  5  Ohio  C.  PI. 

79  The  expense  of  an  uns'iceessful       187;  7  Ohio  N.  P.  420. 

eflFort     in    fishing    for    lost    tubing  so  Andrew    v.    National    Foundry, 

has    been    allowed    to    a    mortgagee       76  Fed.  Rep.  166;   22  C.  C.  A.  110; 


MORTGAGES.  381 

erty  as  an  incident,  if  such  was  the  evident  intent  of  the  mort- 
gagor and  mortgagee.^^  Even  though  the  company  had  no 
power  to  execute  the  mortgage,  yet  it  cannot  raise  that  question 
on  the  ground  that  it  was  of  a  quasi-public  character,  so  long  as 
the  municipality  in  which  it  is  situated  does  not  challenge  the 
validity  of  the  moi'tgage.^'  The  property  should  be  sold  as  an 
entirety  "v\dtliout  redemption ;  and  no  redemption  can  be  allowed 
when  the  foreclosure  is  in  the  United  States  Circuit  Court,  not- 
withstanding a  State  statute  requires  mortgaged  property  to  be 
sold  subject  to  the  right  to^  redeem.^^ 


36  L.  R.  A.  139;  46  U.  S.  App.  281 
rehearing  denied,  77  Fed.  Rep.  774 
23  C.  C.  A.  454;  46  U.  S.  App.  619 


956;  20  C.  C.  A.  133;  36  U.  S.  App. 
563. 

83  Farmers'  Loan,  etc.,  Co.  v.  Iowa 


Hays  V.  Galion,  etc.,  Co.,  29  Ohio  St.  Water  Co.,   78  Fed.  Rep.  881. 

330.  The   purchaser    is    entitled   to   at 

81  Andrew    v.    National    Foundry,  once    take    possession    as    absolute 
supra.  owner.    ]\IcKenzie  v.  Bismark  Water 

82  American  W.  W.  Co.  v.  Farm-  Co..  F.  6  N.  D.  361;  71  N.  W.  Rep. 
ers'   Loan,   etc.,   Co.,    73   Fed.   Rep.  608. 


CHAPTER  XVIII. 

TRANSPORTATION  AND  EMINENT  DOMAIN. 

§349.  Scope  of  chapter. 

§350.  Transportation  of  gas  or  oil  a  i)ublic  use. 

§351.  Carriers  of  oil. —  Tank  cars. 

§352.  Transportation  from  State  cannot  bo  prevented. 

§353.  Transportation  by  pipe  line. —  Inter-state  commerce. 

§354.  Regulation  of  transportjition. 

§355.  Ownership  of  oil  in  pipe  lines. 

§356.  May  be  endowed  with  powers  of  eminent  domain. 

§357.  Artificial  gas  companies. —  Eminent  domain. 

§358.  Foreign  companies  excluded  from  use  of  power  of  eminent  domain. 

§359.  Nijjjiber  of  lines  that  can  Ir>  laid  in  right  of  way  acquired. 

§360.  Laying  pipes  in  country  highways. 

§361.  Measure  of  damages    for  taking  right  of  way. 

§362.  Damages  occasioned  by  gas  company's  trespass  on  land. 

§363.  Prospective  damages  for  fires  and  explosions. 

§364.  Removal   of  pipe  line,  damages. 

§365.  Pipe  line  crossing  right  of  way  of  railroad  company. 

§366.  Revocation  of  license. 

§367.  Route,  specifying  in  petition. —  More  than  one  route. 

§368.  Coal  mine  beneath  pipe  line. —  Support. 

§369.  Well  pipe  passing  through  coal  mine. 

§349.    Scope  of  chapter. 

In  tliis  chapter  all  questions  of  negligence  in  the  transporta- 
tion of  oil  or  gas  are  eliminated,  thev  finding  an  appropriate 
place  in  the  chapters  on  Transportation  and  on  iS^egligence,  and 
in  the  one  on  Leaks  and  Explosions.  So  all  discussions  of  the 
general  principles  and  rules  of  practice  of  eminent  domain  are 
eliminated,  except  so  far  as  they  are  peculiar  to  questions  con- 
cerning gas  and  oil. 

§350.     Transportation  of  gas  or  oil  a  public  use. 

The  transportation  of  natural  gas  or  oil  is  a  public  use,  as 
much  so  as  a  railway  company  engaged  in  the  transportation  of 

382 


TEAXSPORTATIOX  EMINENT    D0:MAIN.  383 

articles  of  commerce.  Indeed,  natural  gas  and  petroleum  when 
brought  to  the  surface  and  enclosed  in  tanks,  reservoirs  or  pipes 
are  articles  of  commerce,  a  commercial  commodity.  "  The  gas 
in  the  earth  may  not  be  a  commercial  commodity,"  said  the 
Supreme  Court  of  Indiana,  "  but,  when  brought  to  the  surface 
and  placed  in  pij^es  for  transportation,  it  must  assume  that  char- 
acter as  completely  as  coal  on  the  cars  or  petroleum  in  the  tanks. 
We  suppose  it  clear  tliat  Pennsylvania  could  not  prohibit  the 
transportation  of  coal  or  petroleum  to  another  State,  and  there 
is  no  difference  between  cases  where  coal  is  the  commodity  af- 
fected and  those  in  which  it  is  natural  gas.  It  is  no  doubt  true 
that  there  is  a  jx^int  at  which  a  natural  or  a  manufactured 
product  is  not  an  article  of  commerce,  but,  when  it  assumes  such 
a  form  as  fits  it  for  transportation  from  State  to  State,  it  is,  so 
far  as  the  law  of  interstate  commerce  is  concerned,  transformed 
into  a  commercial  commodity."  "  Xatural  gas  is  as  much  an 
article  of  commerce  as  iron  ore,  coal,  petroleum,  or  any  other 
of  the  like  products  of  the  earth.  It  is  a  commodity  which 
may  be  transported,  and  it  is  an  article  which  may  be  sold  in  the 
markets  of  tlie  countiy."  ^  There  are  many  oases  to  the  same 
effect;  and  it  is  now  no  longer  an  oj^en  question  that  the  trans- 
portation of  gas,  whether  artificial,  manufactured,  or  natural, 
and  oil,  of  whatever  kind,  is  a  public  use." 

1  State  V.  Indiana,  etc.,   Co.,   120  West    Virginia,    etc.,    Co.    v.    Ohio 

Ind.  575;  22  N.  E.  Rep.  778;  29  Ani.  River  Pipe  Line  Co.,  22  W.  Va.  600; 

and  Eng.  Corp.  Cas.  237 ;  6  L.  R.  A.  Jamieson  v.  Indiana,  etc.,  Co.,    128 

579.  Ind.  555;  28  N.  E.  Rep.  76;  12  L.  R. 

-  Bloomfield,  etc.,  Co.  v.  Richard-  A.  652 ;  34  Am.  and  Eng.  Corp.  Cas. 

son.     63     Barb.     437 ;     Carother    v.  1 ;   Manufacturers'  Gas  and  Oil  Co. 

Philadelphia  Co.,   118   Pa.   St.  468;  v.  Indiana,  etc..  Co.,   155  Ind.  545; 

12  Atl.  Rep.  314;  Johnston  v.  Peo-  58  X.  E.  Rep.  706;  Manufacturers' 

pie's    Natural    Gas    Co.     (Pa.),    7  Gas  and  Oil  Co.  v.  Indiana,  etc..  Co., 

Atl.  Rep.  167;   West  Virginia,  etc.,  155  Ind.  566;   58  N.  E.  Rep.  851. 
Co.  V.  Volcanic  Oil  and  Coal  Co.,  5  Conducting  natural  gas  from  the 

W.     Va.     382 ;     Johnston's     Appeal  wells  to  consumers  is  the  transporta- 

(Pa.),  7  Atl.  Rep.  167;  In  re  Ohio  tion  of  freight.      Carother  v.  Phila- 

Valley    Gas   Co.,   6   Pa.   Dist.   Rep.  delphia   Co..    118    Pa.    St.    468;    12 

200;  27  Pittsb.  Leg.  J.  (N.  S.)  321;  Atl.  Rep.  314. 


384  OIL    AXD    GAS. 

§351.     Carriers  of  oil  —  tank  cars. 

Carriers  of  oil  iinist  serve  all  shippers  impartially.  If  they 
fail  to  furnish  tank  cars  for  oil,  in  consequence  of  which  the 
shipper  is  required  to  ship  oil  in  barrels,  they  are  liable  for  the 
damages  resulting  therefrom,  imder  Sec.  8  of  tlie  Interstate 
Conunerce  Act  providing  that  "  any  common  carriers  "  subject 
to  its  provisions  shall  be  liable  for  the  "  full  amount  "  of  all 
damages  caused  by  violation  of  its  provisions.  If  they  cliarge 
for  carrying  oil  in  barrels  when  the  use  of  tank  cars  for  ship- 
ments has  not  been  open  impartially  to  shippers,  in  consequence 
of  which  such  shippers  have  been  deprived  of  the  use  of  such 
cars,  they  will  he  required  by  the  Interstate  Commerce  Commis- 
sions to  refund  the  amount  received  for  the  transportation  of 
the  barrels.^ 

§352.     Transportation  from  State  cannot  be  prevented. 

As  gas  and  oil  are  instruments  of  commerce  when  confined  in 
receptacles,  a  State  cannot  prevent  their  transpoi"tation  beyond 
its  boundaries,  however  desirable  such  prevention  may  be.  This 
has  been  attempted  without  success.*  Because  of  its  local  char- 
acter, however,  it  occupies  a  position  distinct  from  other  articles 
of  commerce.  "  Upon  this  point,"  to  quote  from  an  Indiana 
case,  "  we  affirm  that  natural  gas  is  characteristically  and  pecu- 
liarly a  local  product.,  that  its  production  is  confined  to  a  limited 
territory,  that  because  of  its  local  character  and  peculiarities 
it  is  a  proper'  subject  of  State  legislation,  and  cannot,  so  far 
as  regards  local  protection,  be  made  the  subject  of  general  legis- 
lation by  Congress ;  or,  at  all  events,  that,  it  does  not  require  a 
uniform  system  as  between  the  States  for  its  regulation."  ^ 

3  Independent  Refiners'  Associa-  Corp.  Cas.  1;  Manufacturers'  Gas, 
tion  V.  Western,  etc.,  R.  R.  Co.,  4  etc.,  Co.  v.  Indiana,  etc.,  Co.,  155 
Inter.  St.  Rep.  162."*  Ind.  545;  58  N.  E.  Rep.  706;  Manu- 

4  State  V.  Indiana,  etc.,  Co.,  120  faeturers'  Gas,  etc.,  Co.  v.  Indiana. 
Ind.  575;  22  N.  E.  Rep.  778;  6  L.  etc.,  Co.,  155  Ind.  566;  58  N.  E. 
R.  A.  579;   29  Am.  and  Eng.  Corp.  Rep.  851. 

Cas.  237 ;  Jamieson  v.  Indiana,  etc.,  5  Jamieson   v.   Indiana,   etc.,   Co., 

Co.,  128  Ind.  555;  28  N!  E.  Rep.  76;        supra. 
12  L.  R.  A.  652;   34  Am.  and  Eng. 


TRAXSPORTATIOX  EMINENT    DOMAIX.  385 

§353.     Transportation  by  pipe  line. —  Interstate  commerce. 

There  is  no  doubt  about  |Totroleum  or  natural  gas  (and  even 
artificial  gas)  being  the  subject  of  commerce,  even  of  inter- 
state commerce.  The  Indiana  Supreme  Court  has  so  consid- 
ered it,  saying: 

"  jSTatural  gas  is  as  much  an  article  of  commerce  as  iron  ore, 
coal,  ix'troleum,  or  any  other  of  the  like  products  of  the  earth. 
It  is  a  commodity  which  may  be  transported,  and  it  is  an  ar- 
ticle which  may  be  bought  and  sold  in  the  markets  of  the  coun- 
tiy.  The  gas  in  the  earth  may  not  be  a  commercial  commodity, 
but,  when  brought  to  the  surface  and  placed  in  pii>es  for  trans- 
portation, it  must  assume  that  character  as  completely  as  coal 
on  the  cars  or  petroleum  in  the  tanks.  We  suppose  it  clear 
that  Pennsylvania  couhl  not  prohibit  the  transportation  of  coal 
or  petroleum  to  another  State,  and  there  is  no  diiference  in  prin- 
ciple between  cases  whore  coal  is  the  commodity  affected  and 
those  in  which  it  is  natural  gas.  It  is  no  doubt  tnie  that  there 
is  a  point  at  which  a  natural  or  manufactured  product  is  not 
an  article  of  commerce,  but,  when  it  assumes  sudi  a  form  as 
fits  it  for  transportation  from  State  to  State,  it  is,  so  far  as  the 
law  of  interstate  commerce  is  concerned,  transformed  into  a 
commercial  commodity.  For  the  purposes  of  taxation  an  ar- 
ticle of  property  may  not  be  regarded  as  a  commercial  com- 
modity until  it  has.  started  on  its  way  from  one  State  to  another, 
but  property  that  may  become  an  article  of  commerce  cannot  be 
kept  in  the  State  where  it  was  produced  by  a  State  law  forbid- 
ding its  transportation.  If  this  were  not  so,  then,  not  only 
might  coal  and  petroleum  be  kept  within  the  State  in  which 
they  were  produced,  but  so  might  com  and  wheat,  cotton,  and 
fruit,  and  lead  and  iron.  If  such  laws  could  lie  enacted  and 
enforced,  a  complete  annihilation  of  interstate  commerce  might 
result,  and  it  was  to  prevent  the  possibility  of  such  result  that 
the  provision  vesting  exclusive  power  in  the  Federal  government 
was  written  in  the  Xational  Constitution."  ^ 

estate  v.  Indiana,  etc..  Co..  120  579;  2  Inter  St.  Com.  Reps.  758; 
Ind.  575 ;  22  X.  E.  778 ;  29  Am.  and  Manufacturers'  Gas  and  Oil  Co.  v. 
Eng.    Corp.    Cas.   237;    6   L.    R.    A.       Indiana,  etc.,  Co.,  156  Ind.  679;  60 


386  OIL    AND    GAS. 

§354.     Regulation  of  transportation. 

ISTotwitlistanding  that  natural  gas  is  the  subject  of  interstate 
commerce,  that  will  not  prevent  the  State,  in  the  exercise  of 
its  police  power,  taking  such  steps  as  will  protect  its  inhabitants 
and  their  piroperty,  even  though  the  effect  is  to  prevent  its  gen- 
eral transportation.  Such  an  instance  occurs  where  the  State 
prohibits  a  greater  pressure  in  the  pipes  than  a  certain  amount, 
although  such  a  pressure  is  not  sufficient  to  carry  the  gas  from 
the  field  where  it  is  found  beyond  the  boundaries  of  the  State. 
In  an  Indiana  case  the  follo\ving  language  was  used  in  dis- 
cussing the  right  of  the  State  to  regulate  the  transportation  of 
gas: 

"  If  natural  gas  cannot  be  safely  transported  to  a  State  dis- 
tant from  its  source,  it  is  because  of  its  natural  qualities,  and 
not  because  of  legislation.  The  restriction  upon  transporta- 
tion, if  there  be  any,  is  in  the  inherent  nature  of  the  thing 
itself;  none  is  put  upon  it  by  the  statute,  since  the  statute  does 
no  more  than  regiilate  its  conveyance  from  the  wells  to  points  of 
distribution  in  such  a  mode  as  to  protect  lives  and  property. 
This  it  does,  and  nothing  more.  If  the  distribution  within  the 
State  cannot  be  made  at  safe  pressure,  it  is  because  of  the 
character  of  tlie  local  natural  product,  not  because  of  any 
standard  of  pressure  fixed  by  legislation.  Fixing  the  standard 
of  pressure  is  not  a  regulation  of  interstate  commerce;  possibly 
it  might  be  different  if  the  product  were  not  a  local  one,  and 
intrinsically  dangerous ;  but  natural  gas  is  local  and  is  danger- 
ous in  its  transportation  and  use.  It  is  the  inherent  element 
of  danger  that  makes  it  necessary  to  handle,  store,  and  trans- 
]x>rt  natural  gas  in  peculiar  modes,  and  under  reasonable  re- 
strictions. It  is  true  that  natural  gas  may  be  an  article  of 
commerce,  but  it  is  not  an  ordinaiy  article  of  commerce.  It  is 
not  a  commercial  commodity  while  in  the  earth,  it  is  only  so 
when  it  ceases  to  become  real  estate  and  becomes  personal  pro}> 
erty.     It  cannot  in  any  event  become  an  ordinary  article  of 

N.  E.  Eep.  1080;  Manvifacturers'  Manufacturers'  Oil  and  Gas  Co.  v. 
Gas  and  Oil  Co.  v.  Indiana,  etc.,  Co.,  Indiana,  etc..  Co.,  155  Ind.  545 ;  'S 
155  Ind.   566;    58   N.   E.   Rep.   851;       N.  E.  Rep.  706. 


TKAXSPORTATIOX  EMIXEXT  DOMAIN.  387 

merchandise  in  Avhich  no  dangerons  elements  combine.  In  a 
limited  and  qualified  sense  it  is  a  commercial  commodity,  but 
the  limitation  is  not  put  upon  it  by  any  statute.  That  is  done 
by  nature.  It  is,  no  doubt,  so  far  a  commercial  commodity  that 
this  State  cannot  prohibit  its  transportation  to  another  State  by 
direct  legislation.  If  it  can  be  taken  from  the  well  and  trans- 
ported to  another  State  under  a  safe  pressure  the  State  cannot 
prohibit  its  transportation,  nor  can  the  State  establish  one 
standard  of  pressure  for  its  ovm  citizens  and  another  standard 
for  the  citizens  of  other  States.  But  nothing  of  the  kind  is  at- 
tempted directly  or  indirectly,  for,  as  we  have  sho\\Ti,  there  is 
one  standard  and  no  prohibition.  The  standard  is  for  all.  If 
it  is  such  as  will  allow  the  transportation  of  natural  gas  to 
other  States,  there  is  no  restriction  or  burden  upon  interstate 
commerce.  If  there  is  a  prohibition  in  any  sense,  or  to  any  ex- 
tent, it  is  in  the  nature  of  the  commodity  itself,  but  tliere  is  no 
prohibition.  We  have  shown,  as  we  believe,  that  natural  gas, 
because  of  its  local  nature  and  intrinsic  qualities,  cannot  be 
made  the  subject  of  general  commerce  between  the  States,  and 
have  thus  established  the  conclusion  that  it  cannot,  so  far  as 
local  safety  is  concerned,  bo  made  the  subject  of  uniform  Fed- 
eral legislation,  but  is  a  legitimate  subject  for  reasonable  police 
regulation.  But  if  it  be  conceded  that  it  is  tlie  subject  of  gen- 
eral commerce  between  the  States,  it  may,  nevertheless,  be  the 
subject  of  legislation  by  the  State  in  so  far  as  the  regulation  is 
local.  In  every  case  in  which  there  is  an  autlioritative  decision 
upon  the  question  it  is  affirmed  that  the  States  may  make  police 
regulations,  although  articles  of  commerce  may  be  affected  by 
such  regTilations.  Interstate  commerce,  it  is  true,  can  neither 
be  burdened  nor  restricted.  But  the  establishment  of  a  reason- 
able police  regulation  for  the  local  safety  is  neither  a  burden 
nor  a  restriction  within  the  meaning  of  the  law ;  since,  if  there 
be  a  lawful  exercise  of  a  governmental  power,  there  can  be  no 
wrong.  Our  own  cases  recognize  the  power  to  enact  reasonable 
police  regulations  concerning  articles  of  commerce.  But  our 
decisions  are  of  comparatively  little  importance  upon  this  ques- 
tion, since  the  question  is  one  to  be  determined  by  the  decisions 
of  the  Supreme  Court  of  the  United  States.     The  most  familiar 


388  OIL    AND    GAS. 

instances  of  the  exercise  of  police  power  over  commercial  com- 
modities are  those  wherein  intoxicating  liquors  were  tlie  subject 
of  legislation,  and  it  has  been  uniformly  held  that  such  com- 
modities are  subject  to  State  authority."  ^ 

§355.     Ownership  of  oil  in  pipe  lines. 

Prima  facie  oil  delivered  to  a  \n\yc  line  lx?longs  to  tlie  person 
to  whose  credit  or  in  whoso  name  it  is  delivered;  and  the  pipe 
line  company,  when  sued  for  the  oil,  cannot  show  that  another 
owTied  it,  or  had  an  interest  in  it  as  a  tenant  in  common.*  An 
interest  represented  by  a  run-ticket  issucil  by  a  ])i\)v  lino  com- 
pany storing  and  carrying  oil  nuiy  be  garnisheed,  although  all 
the  oil  the  company  is  intnisted  with  is  mixed  together  and 
stored  in  a  common  stock  in  two  States,  in  one  of  which  the 
garnishee  proceedings  is  brought,  and  altliough  the  particular 
oil  for  which  the  ticket  was  given  was  produced  in  the  other 
State  and  was  never  in  the  State  in  which  such  proceedings  are 
instituted.'' 

§356.     May  be  endowed  with  powers  of  eminent  domain. 

Owing  to  the  piublic  character  of  transportation  of  oil  and 
(natural)  gas,  companies  producing  or  manufacturing  such 
commodities  may  be  endowed  with  the  ]X)wer  of  eminent  do- 
main, in  order  that  they  may  secure  a  right  of  way  for  their 
pipe  lines."  "  In  this  State  the  legislature,  in  the  exercise  of 
its  discretion,  has  judged  it  proper  to  clothe  companies,  cor- 

7  Jamieson  v.  Indiana,  etc.,  Co.,  37  W.  X.  C.  473;  33  Atl.  Rep.  U87. 
128  Ind.  555;  28  N.  E.  Rep.  76;  12  9  Buckeye  Pipe  Line  Co.  v.  Fee, 
L.  R.  A.  652;  34  Am.  and  Eng.  Corp.       15  Ohio  C.  C.  673. 

Cas.   1 ;   Manufacturers'  etc.,  Co.  v.  lo  Johnston    v.    People's    Natural 

Indiana,  etc.,  Co.,  155  Ind.  566;   58  Gas  Co.    (Pa.),  7  Atl.   Rep.   167;   5 

i>.  E.  Rep.  851;  Manufacturers',  etc.,  Cent.  Rep.  564;  15  Morr.  Min.  Rep. 

Co.   V.   Indiana,   etc.,    Co.,    156   Ind.  556;    Carother   v.   Philadelphia  Co., 

679;   60  N.  E.  Rep.  1080;   Consum-  118  Pa.  St.  468;   12  Atl.  Rep.  314; 

ers'  Gas  Trust  Co.   v.  Harless,    131  Bloomfield,  etc..  Co.   v.  Richardson, 

Ind.  446;  29  N.  E.  Rep.  1062.  63   Barb.   437;    West  Virginia,  etc.. 

8  Enterprise  Oil  and  Gas  Co.  v.  Co.  v.  Volcanic  Oil  and  Coal  Co.,  5 
National  Transit  Co.,  172  Pa.  St.  \\ .  Va.  382;  In  re  New  Rochelle 
421;   26  Pittsb.  L.  J.    (N.  S.)    314;  Water  Co.,  46  Hun  525. 


TKANSPORTATIOX 


EMINENT    DOMAIN. 


389 


porations  and  associations  engaged  in  the  business  of  furnishing 
petroleum  and  natural  gas  to  the  citizens  of  tliis  State,  for  con- 
sumption, with  the  power  of  eminent  domain,  while  it  has  not, 
as  yet,  thought  proper  to  clothe  companies,  corj^wrations  and 
associations  not  so  engaged  with  that  power.  It  is  not  our 
province  to  inquire  into  the  motions  which  prompted  the  legis- 
lature to  grant  this  power  to  persons  engaged  in  funiishing 
petroleum  and  natural  gas  to  tlie  people  of  this  State,  and  to 
make  no  such  provisions  for  those  furnishing  them  to  tlie  people 
of  other  States.  It  is  sufficient  for  us  to  kn^w  that  under  the 
authorities  they  possess  the  power  to  do  so,  and  tJiat  in  the  exer- 
cise of  the  discretion  it  possesses  it  has  done  so."  ^^ 

§357.     Artificial  gas  companies. —  Eminent  domain. 

Companies  for  furnishing  artificial  or  maiuifactured  gas  sel- 
dom possess  the  power  of  eminent  domain ;  but  there  is  no 
doubt  that  they  may  Ix;  endowed  with  that  i)Ower.^"     They  arc 


11  Consumers'  Gas  Trust  Co.  v. 
Harless,  131  Ind.  446;  29  N.  E.  Rep. 
1062;  15  i..  R.  A.  505;  Board  v. 
Indianapolis,  etc.,  Co.,  134  Ind.  209; 
33  N.  E.  Rep.  972;  Consumers'  Gas 
Trust  Co.  V.  Huntsinger.  14  Ind. 
App.  156;  42  N.  E.  Rep.  G40. 

A  pipe  line  laid  in  ground  with- 
out the  land  owner's  permission  be- 
longs to  the  land  owner.  Windfall, 
etc.,  Co.  V.  Tutewiler,  152  Ind.  364; 
53  N.  E.  Rep.  284. 

Under  a  parol  license  to  lay 
"  water  mains "  the  licensee  has  a 
right  to  lay  only  one  main,  where 
only  one  was  contemplated  when  the 
license  was  given.  Great  Falls  W. 
W.  Co.  V.  Great  Northern  Ry.  Co. 
(Mont.),  54  Pac.  Rep.  963. 

A  statute  providing  that  lands 
for  gas  pipe  lines  shall  not  be  con- 
demned within  a  certain  distance 
of  a  dwelling,  but  permitting  pipes 
to  be  laid  along  a  highway,  without 
regard  to  nearness  of  dwellings,  has 
no  application  to  the  sinking  of  a 
well  and  laying  pipes  on  one's  own 


land,  between  which  and  dwellings 
within  that  distance  there  is  a  higli- 
way.  Windfall  ]Manufg.  Co.  v.  Pat- 
terson, 148  Ind.  414;  47  N.  E.  Rep. 
2;  62  Am.  St.  Rep.  532;  37  L.  R. 
A.  381. 

Under  a  statute  authorizing  a. 
natural  gas  company  engaged  in 
furnishing  gas  to  the  public,  the  pe- 
tition for  the  condemnation  of  a 
tract  for  a  right  of  way  is  fatally 
defective  if  it  only  alleges  that  the 
real  estate  sought  to  be  condemned 
is  necessary  for  its  pipe  line  from 
its  wells  to  a  certain  named  city. 
It  should  show  that  it  is  engaged  in 
furnishing  gas  to  the  public.  If  the 
statute  authorizes  merely  taking  an 
easement,  then  the  petition  is  de- 
fective if  it  seeks  to  take  the  fee. 
Great  Western,  etc.,  Co.  v.  Hawkins 
(Ind.  App.),  66  N.  E.  Rep.  765. 

12  State  V.  Indiana,  etc.,  Co.,  120 
Ind.  575;  22  X.  E.  Rep.  778;  29  Am. 
and  Eng.  Corp.  Cas.  237;  6  L.  R. 
A.  579. 


390  OIL    AND    GAS 

not  usually  such  public  corporations  as  arc  endowed  with  tlie 
privilege  to  exercise  such  a  great  power.  Their  property  is  not 
exempt  from  condemnation  by  a  railway  comjnuiy  seeking  a 
right  of  Avay,  as  public  quasi-public  corjxvrations  usually  are. 
In  one  case  it  Avas  said :  ^'  There  is  nothing  in  the  diarter 
of  the  gaslight  company  which  entitles  it  to  exemption  from  tlie 
power  of  eminent  domain  exorcised  under  the  statuto,  in  ac- 
quiring real  estate.  Its  land  is  not  held  by  virtue  of  any  such 
right;  nor  is  it  required  to  soiwe  any  public  use  which  confers 
upon  it  any  special  ])rivil('g(>  in  this  respect.  It  is  a  private 
manufacturing  corjx)ration  which  furnishes  gas  to  individuals 
and  for  the  lighting  of  the  ])ul>lic  streets,  on  such  torms  as  are 
agreed  upon.  This,  of  itself,  does  not  make  It  a  public  cor- 
poration. It  is  not  merely  public  Ixx^auso  it  has  a  jMiblie  char- 
acter. The  If  nd  is  not  now,  and  has  not  been,  devoted  to  gas 
purposes  by  the  company,  and  it  is  not  clear  that  it  is  not  abso- 
lutely indispensable  for  their  use  at  the  present  time.  That  it 
may  become  so  hereafter  does  not  necessarily  deprive  the  peti- 
tioners of  the  right  to  acquire  it  if  the  public  exigencies  re- 
quire it."  " 

§358.     Foreign  companies  excluded  from  use  of  power  of  eminent 
domain. 

The  legislature  may  authorize  domestic  companies  to  exercise 
the  power  of  eminent  domain  mthout  extending  the  right  to 
foreign  companies ;  and  the  statute  conferring  such  power  is  not 
for  that  reason  unconstitutional.^*  A  foreign  company  may, 
however,  be  endowed  with  such  power.^^ 

13  New  York,  etc.,  R.  E.  Co.  v.  ir. /„  re  Ohio  Valley  Gas  Co.,  6 
Metropolitan  Gaslight  Co.,  6.3  N.  Y.  Pa.  Dist.  200;  27  Pittsb.  Leg.  J. 
326;  .5  Hun  201.  See  also  Common-  (N.  S.)  321;  United  Waterworks 
wealth  V.  Lowell  Gaslight  Co.,  12  Co.  v.  Omaha  Water  Co..  21  N.  Y. 
Allen  77.                        ^  Misc.  594  ;  48  N.  Y.  Supp.  817.     See 

That    an    artificial    gas    company  Cowell  v.  Colorado  Springs.   100  U. 

may  be   endowed  with  the  right  of  S.    .55;     American,    etc.,    Union     v. 

eminent   domain,    see   Bloomfield   v.  Yount.    101    U.    S.    352;    Watts    v. 

Eichardson.  63  Barb.  437.  Gantt,  42  Neb.  869;   61  N.  W.  Rep. 

14  Consumers'  Gas  Trust  Co.  v.  104;  Carlow  v.  Aultman,  28  Neb. 
Harless,  131  Ind.  446;  29  N.  E.  Eep.  672;  44  N.  W.  Rep.  873. 

1062;    15    L.   R.   A.   505. 


TRANSPORT AT10^^  —  EMINENT    DOMAIN.  391 

§359.  Number  of  lines  that  can  be  laid  in  right  of  way  acquired. 
A  gas  company  having  acquired  a  right  of  way  by  the  power 
of  eminent  domain  is  not  restricted  in  the  size  of  the  pipe  it  will 
lay  down,  nor  in  the  number  so  long  as  it  keeps  upon  such  right 
of  way.^^ 
§360.     Laying  pipes  in  country  highways. 

As  a  pipe  line  is  an  additional  burden  on  the  fee  of  a  country 
highway,  a  gas  or  oil  company  engaged  in  the  transi>ortation  of 
gas  or  oil  must  condemn  the  fee  for  their  use,  and  also  obtain 
the  consent  of  the  proper  public  officials,  before  it  can  lay  its 
pipe  lines  therein.^^ 

§361.     Measure  of  damages,  for  taking  right  of  way. 

The  court^s  will  presume  that  it  is  a  damage  to  land  to  con- 
duct a  pipe  line  through  it,  without  any  evidence  of  that  fact.^« 
In  determining  the  amount  of  damages,  both  present  and  future 
damages  mav  be  recovered.^^  The  measure  of  damages  in  the 
appropriation  of  a  right  of  way  is  the  actual  value  of  the  land 

16  Dover  Gaslight  Co.  v.  Dover,  7 

De  G.  M.  and  G.  545;  4  Gas  J.  129, 

176;  IJur.  (N.  S.)  812. 

A    gas    company    cannot    erect    a 

telegiaph    or    telephone    line    along 

and    on    its    right    of    way    on    the 

ground  that  it  is  necessary  to  cany 

on  the  chief  purpose  of  its  incorpo- 
ration.    Woods  V.   Greensboro,   etc.. 

Gas    Co.    (Pa.),    54    Atl.    R^p.   470. 

See    Gray   v.    Boston    Gaslight   Co., 
114  Mass.  149. 

17  Board  v.  Indianapolis,  etc.,  Co., 
134  Ind.  209;  33  N.  E.  Rep.  972; 
Consumers'  Gas  Trust  Co.  v.  Hunt- 
singer,  14  Ind.  App.  156;  42  N.  E. 
Rep.  640;  Sterling's  Appeal,  111 
Pa.  St.  35;  2  Atl.  Rep.  105;  Bloom- 
field,  etc..  Gas  Co.  v.  Calkins,  1 
T.  and  C.  (N.  Y.)  549;  Calkins  v. 
Bloomfield,  etc..  Gas  Co.,  1  T.  and 
C.    (N.  Y.)    541. 


In  Bishop  v.  North  Adams  Fire 
District,  167  Mass.  364,  45  N.  E. 
Rep.  925,  it  is  held  that  one  owning 
the  fee  of  a  highway  is  not  entitled 
to  damages  because  of  a  water  pipe 
laid    therein. 

In  England,  see  Selby  v.  Crystal, 
etc.,  Ga.s  Co.,  30  Beav.  606;  11  Gas 
J.  398;  6  L.  T.  R.  790;  Footway, 
Mitcham  Gas  Co.  v.  Wimbledon  Lo- 
cal Board.  30  Gas  J.  600. 

18  Indiana  Natural  Gas  and  Oil 
Co.  V.  Jones,  14  Ind.  App.  55;  42 
N.  E.  Rep.  487 ;  12  Nat.  Corp.  Rep. 
60. 

10  Hyde  Park,  etc.,  Co.  v.  Porter, 
167  111.  276;  47  N.  E.  Rep.  206; 
affirming  64  111.  App.  152.  This 
statement,  in  its  effect,  must  not  be 
extended  to  prospective  damages 
caused  by  negligence. 


392  OIL    AND    OAS. 

appropriated,  and  any  injury  to  the  residue. ""  In  the  case  just 
cited  only  an  easement  was  taken,  and  the  court  called  attention 
to  the  difference  where  only  an  easement  was  taken  and  where 
the  fee  was  condemned.  ''  The  object,  therefore,  of  the  legis- 
lature in  passing  the  Act,"  said  the  court  in  the  case  cited,  "  we 
are  now  considering  was  to  provide  hiiid  (iwners  a  just  and  ade- 
quate compensation  for  damages  incident  to  construction  of  pipe 
lines  over  and  across  their  lands.  Such  comjwnsation  must  be 
measured  by  the  actual  damages  to  the  freehold  occasioned  by 
such  construction,  including  the  land  appropriated  and  occupied, 
and  the  relation  of  the  remaining  land  thereto.''  -^  The  amount 
to  be  allowed  where  the  line  is  laid  in  the  ])ublic  highway  is  the 
difference  in  tlie  market  value  of  the  land  Ix^fore  and  after  the 
construction.""  Damages  may  be  allowed  for  the  inconvenience 
occasioned  b}^the  placing  of  boxes  at  a  ]X)int  where  another  line 
crosses,  and  which  would  not  have  l)een  necessary  but  for  the 
oonstructioii  of  such  line."'^  But  the  right  of  tlie  C0'mi>any  lo 
abandon  the  easement  or  right  of  way  and  remove  its  pipes  can- 
not, it  has  been  held,  furaish  a  claim  for  injuries  apprehended 
from  its  exercise ;  nor  in  reducing  the  amount  by  reason  of  the 
fact  that  the  land  0A\Tier  would,  by  such  abandonment-,  receive 
back  his  land  without  a  burden  imposed  u])on  it."*  But  this 
case  on  apj>eal  was  reversed,  as  indicated  below."" 

20  Manvifacturers',  etc.,  Co.  v.  23  McMillan  v.  Philadelphia  Co., 
.Leslie,  22  Ind.  App.  677;  51  N.  E.  1  Pa.  Super.  Ct.  G48;  38  W.  N.  C. 
Rep.  510.     The  first  opinion  in  this       222. 

case,  as  reported  in  49  N.  E.   Rep.  24  Clements  v.  Philadelphia  Co.,  .3 

946,  was  set  aside.  Pa.  Super.  Ct.  14;  39  W.  N.  C.  299; 

21  Indiana,  etc.,  Co.  v.  Jones,  14  reversed  184  Pa.  St.  28;  41  W.  M. 
Ind.  App.  55;  42  N.  E.  Rep.  487;  C.  321;  28  Pittsb.  L.  J.  (N.  S.) 
12  Nat.  Corp.  Rep.  60;  Patterson  v.  344;  39  L.  R.  A.  532;  38  Atl.  Rep. 
People's   Natural   Gas  Co..   172   Pa.  1090. 

St.   554;    26   Pittsb.   L.   J.    (N.   S.)  25  Evidence     of    the    effect    upon 

260;  37  W.  N.  C.  42^;  33  Atl.  Rep.  vegetation  of  escaping  gas  is  admis- 

575 ;     Newberryport    Water    Co.    v.  sible,   even   upon   cross  examination 

Newberryport,  168  Mass.  541;  47  N.  where  the  witness  has  testified  that 

E.  Rep.  533.     Benefits  may  be  con-  laying  pipes  through  the  soil  would 

sidered.     Fisher   v.   Baden   Gas  Co.,  not    injure    the    land.      Bloomfield. 

138  Pa.  St.  301;  22  Atl.  Rep.  29.  etc..  Gas  Co.  v.  Calkins,  1  T.  and  C. 

22Hankey  v.   Philadelphia   Co..   5  (N.   Y.)    549. 

Pa.  Super.  Ct.  148;  41  W.  N.  C.  27.  Damages   for   loss   of   rifle   range. 


TKAXSPOKTATIO^'  EMINENT  DOMAIN.  393 

§362.     Damages  occasioned  by  gas  company's  trespass  on  land. 

Where  a  gas  company  commits  a  trespass  upon  land,  under 
the  claim  or  assertion  of  a  right  to  lay  a  pipe  line  therein,  the 
measure  of  damages  is  not  the  same  as  it  is  in  proceedings  to 
condemn  a  right  of  way.  In  such  an  instance  the  land  owner  is 
entitled  to  damages  for  any  injury  to  the  land  caused  by  the 
operation  of  the  pij^e  line.  But  he  is  not  entitled,  it  has  been 
held  in  Pennsylvania,  for  destruction  of  crops  caused  by  escap- 
ing gas,  if  there  be  no  evidence  that  the  pijies  are  defective  or  not 
properly  const nicted."" 

§363.     Prospective  damages  for  fires  and  explosions. 

Damages  cannot  be  allowed  for  tliose  that  may  possibly  be 
occasioned  by  fires  and  explosions.  The  courts  will  not  pre- 
sume that  gas  or  oil  cannot  be  safely  conducted  through  projier 
pipes ;  and  it  will  not  presume  that  the  condemning  company 
will  not  use  proper  pipes  or  conduct  its  business  in  a  safe  man- 
ner. Xor  will  it  Ix^  presumed  that  gas  or  oil  will  be  permitted 
to  escape  so  as  to  injure  growing  crops  or  trees,  or  render  the 
region  through  which  it  passes  unsafe  or  undesirable  to  use  for 
living  purposes.  It  will  not  indulge  the  presumption  that 
noisome  smells  will  be  ]:)ermitted  to  escape,  to  tlie  annoyance  of 
the  owner  of  the  lands  through  which  the  pipe  lines  nm."^  This 
is  especially  true  if  a  statute  makes  the  company  liable  for  dam- 
ages thus  occasioned  in  the  future.'^ 

see  Holt  v.  Gaslight  and  Coke  Co.,  Manufacturers'  Gas  Co.  v.  Leslie.  22 

L.  R.  7  Q.  B.  Div.  728;  41  L.  J.  Q.  Ind.  App.  677;   51   N.  E.  Rep.   .510; 

B.  351;  27  L..  T.  (N.  S.)  442.  For  Wolf  v.  Cincinnati,  etc.,  Co..  6  Ohio 
injury  to  arches  in  street.  Gaslight  Dec.  159;  Denniston  v.  Philadelphia 
and  Coke  Co.  v.  St.  George  Vestry,  Co.,  161  Pa.  St.  41;  28  Atl.  Rep. 
42  L.  J.   (N.  S.  Q.  B.)  50.  1007. 

26  Patterson  v.  People's  Natural  28  Denniston  v.  Philadelphia  Co., 
Gas  Co.,  172  Pa.  St.  .554;  .3.3  Atl.  1  Super.  Ct.  (Pa.)  .599;  38  W.  N. 
Rep.  575;  Denniston  v.  Philadelphia  C.  332;  27  Pittsb.  L.  J.  (N.  S.)  14. 
Co.,  161  Pa.  St.  41 ;  28  Atl.  Rep.  Future  prospective  leaks  in  water 
1007;  Hankey  v.  Philadelphia  Co.,  pipes  may  be  allowed.  Darlington 
5    Pa.    Super.    Ct.    148;    41    W.    N.  v.   Alleghany,   28  Pittsb.   L.   J.    {N. 

C.  27.  S.)   381;  McGregor  v.  Equitable  Gas 

27  Indiana,  etc..  CS^  v.  Jones.  14  Co.,  21  Atl.  Rep.  13;  139  Pa.  St. 
Ind.   App.   55:    42   X.   E.   Rep.   487;       230. 


394  OIL    AND    GAS. 

§364.     Removal  of  pipe  line,  damages. 

In  a  Pennsylvania  case  the  following  rule  was  laid  down  con' 
cerning  damages  occasioned  by  a  removal  of  a  pipe  line : 

"  An  entry  for  the  purpose  of  removal  stands,  however,  upon 
somewhat  different  grounds.  It  is  not  made  because  of  the 
necessities  of  transportation,  but  because  they  no  longer  exist. 
It  is,  therefore,  the  duty  of  the  company  to  make  the  removal 
at  the  time  and  in  the  manner  best  adapted  to  the  purpose,  and 
least  harmful  to  the  land  owner.  It  is  the  duty  of  the  company, 
upon  a  surrender  of  its  easement,  to  fill  the  trench  it  has  o|icned 
so  far  as  to  substantially  tO'  restore  the  surface  of  the  land,  and 
its  failure  to  do  so  is  just  ground  of  a  complaint.  It  should 
make  compensation  for  any  actual  injury  to  growing  grain  or 
grass,  and,  if  ]he  field  be  in  meadow,  for  any  substantial  injurv^ 
to  the  turf,  beyond  the  mere  o|>ening  and  filling  of  the  trench  in 
which  the  pipe  lay.  Subject.,  however,  to  the  limitations  now 
indicated,  it  has  the  right  to  enter  and  remove  its  pipe  without 
being  liable  as  a  trespasser  therefor."  "® 

§365.     Pipe  line  crossing  right  of  way  of  railroad  company. 

The  owner  of  an  easement  across  or  under  a  railroad  track, 
for  tiie  purpose  of  passing  and  repassing,  cannot  give  a  pipe  line 
.company  the  right  to  lay  its  line  in  his  right  of  way ;  and  if  the 
pipe  line  company,  acting  upon  a  permission  given  by  such 
owner  of  the  easement,  lay  its  pipe  line  in  his  right  of  way  it 
will  be  liable  to  the  railroad  company  in  an  action  of  trespass.^*' 
But  where  the  o^vner  of  land  conveyed  a  right  of  way  to  a  rail- 
road company  for  its  railroad,  and  afterwards  discovered  gas 

29  Clements    v.    Philadelphia    Co.,  and   cannot  be   removed.     Windfall, 

184  Pa.  St.  28;  28  Pittsb.  L.  J.   (N.  etc.,  Co.  v.  Tutewiler,  152  Ind.  364; 

S.)    344;    41  W.  N.  C.  321;   38  Atl.  53  N.  E.  Rep.  284. 

Rep.  1090;   39  L.  R.  A.  532,  revers-  so  United .  States  Pipe  Line  Co.  v. 

ing  3  Pa.  Super.  Ct.  Rep.  14.  Delaware,  etc.,  Ry.  Co.,  62  N.  J.  L. 

A   gas    pipe   laid    in    the    ground  254;  41  Atl.  Rep.  759;  42  L.  R.  A. 

without     permission     of     the     land  572;   Breckanidge  v.  Delaware,  etc.. 

owner   belongs   to   such   land   owner  R.  R.  Co.   (N.  J.),  33  Atl.  Rep.  800. 


TRAxspoRTATiox  —  e:mixext  domaix.  395 

on  his  land  beyond  the  railroad,  it  was  held  that  he  was  entitled 
to  a  right  of  way  across  the  company's  track  for  a  gas  pipe,  as  a 
way  of  necessity.  ^^ 

§366.     Revocation    of  license. 

A  license  to  erect  and  maintain  a  reservoir  and  pipe  line  will 
not  be  revoked  by  court  of  equity,  except  on  the  condition  that 
the  licensee  may  remove  his  improvements,  made  on  the  faith  of 
the  license,  if  it  can  be  accomplished  without  material  loss,  or  if 
not,  that  the  licensor  or  his  gTantor  make  a  just  compensation 
for  the  loss.*^^ 

§367.     Route,  specifying  in  petition  —  more  than  one  route. 

The  exact  location  of  a  purposed  pipe  line  need  not  be  given 
by  courses  and  distances  in  the  |x?tition,  under  the  ordinary  stat- 
ute ;  but  it  is  sufficient  to  give  the  size  of  the  \ii\ye,  the  nund)er 
of  feet  it  will  traverse  the  land  in  question,  and  its  approximate 
direction.^^  As  a  rule  a  company  can  have  only  one  right  of 
way  across  a  tract  of  land ;  however  convenient  another 
would  be.^^ 

§368.     Coal  mine  beneath  pipe  line  —  support. 

The  easement  of  a  gas  company  by  eminent  domain  carries 
with  it  the  right  of  support  for  its  lines;  and  tJie  o^\Tier  of  the 
coal  has  no  right  to  remove  the  coal  or  other  minerals  under  the 
lines  to  their  injury  or  detriment.  The  right  of  the  owner  of 
the  land  is  subordinate  to  the  superior  right  of  the  gas  com- 
pany; and  such  superior  right  to  tlie  use  of  the  ground  appro- 
priated extends  to  all  the  mineral  underlying  the  line,  including 

31  Uhl  V.  Ohio  River  Ry.  Co.,  47  If  the  company  does  not  comply 
W.  Va.  59;  34  S.  E.  Rep.  934.                  AWth  the   statutory  requirements   in 

*3i  Flick  V.   Bell    (Cal.),   42   Pac.  securing  a  condemnation  of  a   right 

Rep.  813.       .  of  way,  the  courts  will  not  enjoin 

32  In  re  Ohio  Valley  Gas  Co.,  6  the  land  owner  from  interfering  with 
Pa.  Dist.  Rep.  200;  27  Pittsb.  L.  J.  the  laying  of  its  pipe  line.  Quarry- 
(N.   S.)    321.  ville  Water  Co.  v.  Fritz,  14  Lane.  L. 

33  McKay  v.   Pennsylvania   Water  Rev.  186. 
Co..  6  Pa.  Dist.  Rep.  364;  27  Pittsb. 

Leg.  J.   (N.  S.)  406. 


396  OIL    AND    GAS. 

the  coal,  the  removal  of  which  would  endanger  the  safety  of  the 
pipes.  In  such  a  case  it  may  be  sho^vIl  in  evidence  in  assessing 
tlie  damages,  the  character  of  the  soil  through  which  the  line 
will  run,  the  deptli  the  line  will  be  below^  the  surface  of  the 
ground,  its  proximity  to  the  surface  of  the  underlying  coal,  the 
danger  of  the  surface  falling  in  w^hen  the  coal  is  removed,  the 
probable  breaking  of  the  pipe  line,  and  the  danger  of  gas  escap- 
ing into  the  mine,  for  the  purjx)se  of  shoAving  the  general  d(^])r('- 
ciation  in  the  market  value  of  the  land  through  which  the  pipe 
line  runs.  The  gas  company  has  a  right  to  the  support  of  its 
pipe  lines,  and  this  is  an  element  to  be  considered  in  estimating 
the  extent  to  which  the  value  of  the  tract  as  a  whole  is  affected, 
though  not  to  estimate  the  value  of  the  coal  supposed  to  be  neces- 
sary to  remain  to  afford  a  support.  The  fact  that  the  gas  com- 
pany has  executed  a  release  of  damages  that  might  Ix?  occasioned 
by  the  removal  of  the  coal  does  not  prevent  the  owner  of  tlie 
mine  recovering  compensation  for  the  risk  of  iiijiirios  to  the 
mine  in  oi^erating  it.^*  Dangers  to  the  coal  mine  that  might 
be  occasioned  by  gas  escaping  into  the  mine  cannot  be  considered 
in  assessing  damages  for  a  right  of  way ;  for  the  law  provides  a 
remedy  in  such  a  case  b}'  an  action  for  damages;  and  if  the  mine 
owner  has  occasioned  a  break  in  the  pipes,  wiiereby  the  gas 
escapes  into  tlie  mine,  by  removing  their  support,  he  cannot  re- 
cover. If  the  gas  company  has  released  a  right  of  support 
'  from  the  coal  or  other  mineral  underlying  the  surface,  then 
the  owner  of  the  coal  may  mine  and  remove  it  as  freely  and 
fully  as  though  no  entry  had  been  made  upon  tlie  surface,  and 
for  that  reason  it  should  not  be  taken  into  consideration  in  ad- 
justing the  damages  to  the  land  owners  " ;  ^^  and  the  element  of 
possible  damages  to  the  pipe  line  from  a  subsidence  of  the  sur- 
face cannot  be  consi4^red.  'Nor  can  evidence  be  admitted  of  a 
conjectural  character  as  to  the  opinions  of  witnessesi  that  there 
might  be  a  subsidence  where  the  coal  is  more  than  one  hundred 

34  Davis  V.  Jefferson  Gas  Co.,  147       1,39  Pa.   St.  230;    21   Atl.  Rep.    13; 
Pa.  St.  130;  23  Atl.  Rep.  218.  27  W.  N.  C.  197. 

35  McGregor  v.  Equitable  Gas  Co., 


TKAXSPOKTATION  EMINENT    DOMAIN.  397 

feet  below  the  surface,  and  therefore  it  would  be  necessary  to 
leave  coal  for  a  support. ^° 

§369.     Well  pipe  passing  through  coal  mine. 

A  lessee  of  a  coal  mine,  having  only  a  right  to  remove  the 
coal,  and  such  rights  as  are  incident  thereto,  cannot  prevent  tlie 
owner  of  tlie  surface,  or  his  lessee,  drilling  a  gas  well  through 
the  stratum  of  coal  to  the  gas  or  oil  below,  whether  or  not  the 
existence  of  the  oil  or  gas  was  known  at  the  time  of  the  lease; 
and  the  lessee  cannot  prevent  a  use  of  either  the  surface  or  of 
the  eartli  below  the  coal  stratum.  lie  is  not  entitled  to  dam- 
ages because  of  the  sinking  of  the  shaft. "'*"  ]^or  will  an  injunc- 
tion be  granted  where  the  pipes  pass  through  that  jX)rtion  of  the 
mine  from  which  the  coal  has  been  removed,  even  though  the 
charge  is  that  there  will  1k^  danger  from  explosions  when  such 
dangei'  is  denied  by  counter  aihdavits  because  of  the  extra  pre- 
cautions that  are  being  used  to  prevent  an  explosion.  Nor  will 
a  preliminary  injunction  be  awarded  to  prevent  the  boring 
where  the  pipe  passes  through  that  ]xirtion  of  tlie  mine  exca- 
vated, if  tlie  remaining  coal  can  be  removed  without  serious 
interference  by  other  passageways  and  tlie  o\vner  of  tlie  coal  can 
be  awarded  a  judgment  for  tlie  value  of  the  coal  taken  out  on 
final  hearing.^*  Xor  will  the  fact  that  one  or  more  wells  have 
already  been  sunk  prevent  the  sinking  of  other  wells,  unless  posi- 
tive danger  should  be  occasioned  therebv.^" 

36  Wallace   v.   Jefferson    Gas   Co.,  Mellon.    152    Pa.    St.    286;    25    Atl. 

147   Pa.  St.  205;  23  Atl.  L,ep.  41G.  Rep.  597;   18  L.  R.  A.  702. 

On  the  same  points  see  Penn.  Gas  38  Rend    v.    Venture    Oil    Co.,    48 

Coal  Co.  V.  Versailles  Fuel  Gas  Co.,  led.    Rep.    248. 

131  Pa.  St.  522;  19  Atl.  Rep.  933.  so  Commonwealth    v.    Sauters.    6 

37Chartiers    Block    Coal    Co.    v.  Kulp  407.     See  Robbins  v.  Guffey, 

48  Leg.  Int.  462. 


CHAPTER  XIX. 

TRANSPORTATION  OF  OIL  AND  GAS. 

§370.     Limit  of  discussion. 

§371.     Injmies  occasioTied  in  transporting  oil  by  roa-son  of  dofpotive  cars 

or  track. 
§372.     Defective  oil  tank.  —  Car.  —  Remote  liability  —  Intervening  agency. 

—  Crude  petroleum  not  a  dangerous  agcnc}'. 
§373.     Oil  shipped  on  trains  carrj'ing  other  good.s. 
§374.     Shipper's  liability  to  servant  of  carrier.      Naphtha. —  Petroleum. — 

Dangerous  agency. 
§375.     Injury  to  passengers. —  Train  wreck. 
§37(5.     Cuiiosity  seekers. —  Exploding  oil.. 
§377.     Allowing  oil  to  escape  from  pipe  line. 
§378.     Inspection  of  pipe  line. 
§379.     Oil  illegally  stored  at  railroad  station. 
§380.     Storing  oil  in  warehouse. 
§381.     Thief  setting  oil  on  fire. 

§370.     Limit  of  discussion. 

In  another  chapter  we  have  discussed  the  subject  of  Eminent 
Domain  as  applied  to  gas  and  oil  pii:>e  lines,  and  shall  not  here 
repeat  what  was  there  said ;  but  shall  only  make  use  of  the  fo  v 
cases  there  are  on  the  subject  of  transportiition  of  oil  and  ga&, 
whether  by  the  ordinar>^  methods  of  transportation,  or  bv  rail- 
road or  water,  or  by  pipe  lines. 

§371.     Injuries  occasioned  in  transporting  oil  by  reason  of  de- 
fective cars  or  track. 

,  A  railway  company  or  common  carrier  may  be  liable  for  in- 
juries to  property  adjacent  its  right  of  way  occasioned  by  the 
use  of  improper  cars,  or  by  allowing  its  track  to  become  out  of 
repair  whereby  a  train  is  derailed,  oil  tanks  it  is  caiTying  are 
bursted  open,  the  oil  set  afire,  the  oil  reaching  adjacent  property 
and  setting  it  on  fire.  Thus  where  a  railroad  employe,  charged 
with  the  duty  of  loading  two  tank  cars  with  oil  from  an  adjacent 

398 


TR.\XSPORTATION.  399 

reservoir,  uncoupled  tlie  cars  in  order  to  move  the  one  filled 
along  the  track  to  make  room  for  tlie  other  one,  when,  by  reason 
of  a  defective  brake  on  it,  it  got  away,  ran  down  the  track  a  mile, 
collided  with  a  locomotive,  burst  the  tank,  set  the  oil  on  fire, 
which  spread  to  property  adjoining  the  right  of  way,  which  was 
burned  down,  the  railroad  company  was  held  liable,  for  the  rea- 
son tJiat  tlio  brake  was  defective,  and  if  a  good  one  had  been 
u|x»n  it  tlie  car  would  not  have  got  away  and  tliere  would  have 
been  no  collision.  It  was  considered  that  tlie  railroad  com- 
pany's serv-^ant  was  in  charge  of  both  cars,  and  whatever  he  did 
was  the  act  of  tlie  company.^  So  where  an  oil  train  was  de- 
railed by  reason  of  a  defective  track,  the  tanks  bursted,  the  oil 
set  on  fire,  which  spread  to  adjoining  property,  the  railroad 
company  was  held  liable,  tlie  court  saying: 

"  The  cases  cited  in  the  original  opinion,  as  well  as  tlie  au- 
thorities relied  on  by  appellant,  by  reason  and  analogy,  support 
the  proposition  that  where  a  railroad  company  negligently  and 
carelessly  runs  a  heavy  freight  train,  consisting,  in  part,  of  sev- 
eral cars  of  oil,  over  a  defective  and  unsafe  track,  tlirough  a 
city,  in  die  night,  at  a  high  and  dangerous  rate  of  speed,  towit : 
thirty-five  miles  an  hour,  in  violation  of  an  ordinance,  it  is 
guilty  of  a  positive  \vrong,  and  not  a  mere  passive  n^ligence, 
and  is  liable  for  tlie  loss  sustained  by  tlie  burning  of  the  pro]> 
erty  of  the  adjacent  land  o^^^ler,  occasioned  through  tlie  ^vi'eck- 
ing  of  the  train  and  tlie  consequent  flowing  and  burning  of  the 
oil,  as  the  proximate  and  natural  result  of  such  negligence, 
under  the  circumstances  alleged  in  tlie  complaint.  It  was  not 
necessaiy  to  aver  in  the  complaint  tliat  after  tlie  wreck  occiuTed, 
the  company  was  then  and  there  guilty  of  any  other  and  addi- 
tional act  of  negligence  which  caused  the  burning  oil  to  run 
down  hill  onto  appellee's  land.  ]^othing  could  have  been  done 
after  the  wreck  occurred  to  prevent  such  a  result.  The  imme- 
diate flowing  of  the  burning  oil  onto  and  over  appellee's  prem- 
ises, and  tlie  consequent  burning  of  her  property,  was,  under 
the  circumstances  attending  the  disaster,  inevitable.  In  other 
words,  in  conclusion  on  this  subject,  it  will  suffice  to  say  that 

lOil    Creek,    etc.,    R.    R.    Co.    v.  Keighron,  74  Pa.  St.  316. 


400  OIL    AND    GAS. 

tlie  Avreck  of  the  train,  tlie  ignition,  explosion  and  burning  of 
the  oil,  and  tlie  consequent  destruction  of  appellee's  property, 
are  shown,  by  the  averments  in  the  complaint,  to  have  been  the 
natural  and  proximate  result  of  the  negligence  of  appellant."  " 
But  where  there  was  a  landslide  which  covered  the  track  of 
a  railway  comi)any,  into  which  an  oil  train  ran,  was  derailed, 
the  oil  tanks  were  broken  open,  the  oil  ignited  from  the  fire  in 
the  locomotive  and  ran  down  a  creek  running  alongside  the  track 
to  the  plaintiff's  property,  four  hundred  feet  below,  and  set  it  on 
fire,  tlie  railroad  ooujpany  was  hold  luit  liable;  for  the  reason 
that  it  had  not  been  guilty  of  any  negligence,  the  landslide  hav- 
ing occurred  but  a  short  time  before  the  wTcck,  and  it  being 
impossible  to  stop  the  train  between  the  place  it  could  have  been 
first  seen  by  the  engineer  and  the  place  where  the  train  was  de- 
railed. 

"  To  hold  the  defendant  answerable  for  tliis  loss,"  said  the 
court,  "  would  be  on  the  same  principle  that  the  defendant  would 
be  answerable  for  all  losses  occasioned  to  other  |>ersons  by  reason 
of  the  burning  oil  floating  down  the  current.  Tf  that  burning 
oil,  thus  carried,  dii'ectly  fired  bridges,  wharves,  warehouses 
and  other  property,  over  and  along  the  stream  for  a  great  dis- 
tance, every  o^\Tier  could  recover  his  loss  from  the  defendant,  if 
it  is  liable  to  the  plaintiffs.  If  the  current  of  water  is  not  an 
intervening  agency,  the  cause  is  proximate ;  if  it  is,  tlie  cause 
is  remote.  The  result  depends  not  on  time  or  distance,  but  on 
the  presence  or  absence  of  an  intervening  agencr^.  ^\Tletller  the 
fire  be  carried  by  running  water  over  which  the  defendant  has 
no  control,  or  through  its  oyvn  woodshed,  or  through  the  ware- 
house of  another,  can  make  no  difference,  unless  it  be  held  that 
water  is  not  an  intervening  agency  in  carrying  and  communi- 
cating the  fire."  ^  Where  burning  oil  flowed  down  from  neigh- 
boring property  upon  the  defendant's  pipe  line,  causing  it  to 
burst  and  throw  a  sprafy  of  burning  oil  on  the  plaintiff's  house, 
thereby  burning  it  down,  the  defendant  was  held  not  liable,  for 
the  pipe  line  was  not  the  proximate  cause  of  the  injury.     The 

2  Lake  Erie,  etc..  R.  R.  Co.  v.  Low-  3  Hoag  v.  Lake  Shore,  etc.,  R.  R. 

der,  7  Ind.  App.  537 ;  34  N.  E.  Rep.       Co.,  85   Pa.   St.  293. 

447,  747. 


401 

TKAXSPOUTATIOIS . 


company  was  not  bonnd  to  foresee  and  provide  against  the  burst- 

ing  of  its  pipe  line.'' 

8372.    Defective  oil  tank  -  car  -  remote  liability  -  intervening 
agency.    Crude  petroleum  not  a  dangerous  agency. 

We  take  the  following  statement  of  a  case  deeided  in  the 
United  States  Court  of  Ap,*als,  where  a  defective  «^1  tank  was 
praeticallv  the  cause  of  a  very  destructive  fire,  but  for  wh.ch 
the  shipping  company  was  held  not  liable: 

"  That   i;   Xovember,    1889,   the    Standard    Oil   Com,>a«y 
shipped  a  tank  car  of  cri.de  ,*troleum  containing  6,000  g.illons 
fronfLima,  Ohio,  to  tl.e  Fort  Scott  Gas  Co.  of  Fort  Scott 
Kansas.     The  tank  car  had  a  discharge  pi,^  in  the  bottom  and 
about  the  center  of  the  tank  some  four  inches  ■"  ''-""j 
proicctin^  alK,ut  six  inches  below  the  bottom.     The  projection 
was  threaded  to  receive  a  heavy  cap  screw.     Wi.hni  tlie  ta^< 
the  discharge  pir«  is  fitted  with  a  heavy  valve  to  prevent    he 
escape  of  oil.     The  valve  rests  upon  a  shoulder  in  the  upi«r 
part^f  the  discharge  pipe.     Below  the  shoulder  there  are  four 
Leaves  made  in  the  valve,  to  penuit  the  flow  of  oil  upon  ra- 
in., the  valve.     An  inflexible  iron  rod  is  attached  to  the  ^ahe, 
extending  through  the  dome  ou  top  of  the  tank  and  proiecti.ig 
a  foot  01  more  above  it     ^Vithin  the  tank  at  the  top  there  is 
a  coiled  wire  spring  arranged  to  bol.l  the  rod  down  and  keep  the 
rod  in  position,  closing  the  outlet.     To  discharge  the  cnteut 
of  the  car  through  die  lower  discharge  pipe  the  cap  is  unscrewed 
and  tlie  pipe  coupling  attached.     The  valve,  by  means  of  tl.e 
rod,  is  tlieu  lifted  and  the  oil  permitted  to  flow  through  the  out- 
let into  the  pipe  and  conducted  U>  the  reservoir  prov.ded  for  .Is 
reception.     The  tank  car  arrived  at  Fort  Scott  on  the  1 1  tli  day 
of  Xovember  and  was  received  by  the  consignee  on  the  next  day 
The  gas  company  caused  the  car  to  be  removed  from  the  yard  of 

.Behlin-    V.    Southwestern,    etc.,       one  for  the  court  and  not  for  the 
^L  in  th.  cai  was  heW  to  he       ^^^l^^;:' ^^.^^Z ^^ 


402  OIL    AND    GAS. 

the  railroad  company,  where  it  was  delivered  and  to  be  placed 
on  the  switch  track  of  another  company  located  on  a  street  a 
half  mile  away  bctw^een  the  property  of  the  gas  company  and 
the  steam  flour  mill  of  the  plaintiff  in  error.  This  was  done 
for  the  purpose  of  piping  the  petroleum  contained  in  the  tank 
into  the  reservoir  of  the  gas  company,  located  beyond  the  mill 
and  upon  tJie  farther  side  of  an  intercepting  street.  The  rail- 
road track  upon  which  the  tank  car  stood  was  three  feet  distant 
from  the  furnace  room  of  the  mill,  and  tbe  latter  being  three 
feet  below  the  level  of  the  railroad  track  at  that  point.  The 
car  was  placed  directly  opposite  the  furnace  room  of  the  mill. 
On  the  afternoon  of  November  the  ISth  before  or  at  the  time  of 
the  removal  of  the  car  on  that  day,  it  was  observed  by  the  en- 
gineer of  the  switch  engine  that  the  tank  was  leaking,  the  oil 
dripping  at  the  outlet  of  the  car  and  forming  a  pool  on  the 
ground.  On  the  morning  of  the  19th  of  J^ovember  two  servants 
of  the  gas  company  undertook  to  discharge  the  oil  into  the  reser- 
voir of  the  gas  company,  through  a  pipe  laid  from  the  reservoir 
to  the  tank  car.  One  of  them  adjusted  the  rod  at  the  top  of 
the  car  and  reported  to  the  other  that  it  had  been  pushed  down, 
indicating  the  valve  to  be  in  proper  jjosition.  The  other  went 
under  the  car  with  a  wrench  to  remove  the  cap  and  attach  the 
pipe  leading  to  the  reservoir.  He  obseiwed  that  tlie  cap  was 
loose  and  removed  it  with  his  hand ;  and  it  is  stated  in  the  brief 
of  the  counsel  of  the  plaintiff  in  error  —  ^\^thout  reference  to 
the  record  of  verification  of  the  statement  —  that  the  man  olv 
served  as  he  went  under  the  car  for  the  purpose  of  removing  tJie 
cap  and  attaching  tlie  coupling,  that  the  oil  was  leaking  some, 
but  he  did  not  deem  that  fact  of  moment,  sup|X)sing  that  tlie 
valve  was  in  proper  position,  and  would  prevent  the  discharge 
of  petroleum  until  it  was  raised.  Upon  removing  the  cap,  the 
oil  flowed  out  before  the  coupling  could  be  attached  and  despite 
the  efforts  made  to  pi^fevent  it  and  before  the  car  could  be  re- 
moved from  its  ix)sition,  the  oil  flowed  down  tlie  descent,  through 
an  open  window,  into  the  boiler  room  and  also  upon  some  hot 
ashes,  located  at  the  rear  of  the  engine  room  and  boiler  house, 
and  some  eight  feet  distant  from  the  car  and  caught  fire,  where- 
by the  mill  and  its  contents  were  destroyed  and  property  of  the 


tra:^^spoktation.  403 

value  of  $107,000  consumed.  After  tlie  fire  and  upon  exam- 
ination of  the  tank,  it  was  discovered  that  it  contained  no  valve  ; 
that  it  was  removed,  but  how,  or  when,  it  is  not  disclosed  bj  the 
evidence,  but  presumably  before  tke  tank  car  was  filled  with  oil 
for  shipment.  The  evidence  established  that  crude  petroleum 
mil  give  off  a  vapor  or  gas  which  will  flash  at  a  temperature  of 
90  degrees,  igniting  by  contact  with  fire,  and  explosive  upon  its 
ignition ;  that  it  is  in  common  use  for  fuel  purposes ;  that  it  is 
as  volatile  as  turpentine.  The  action  against  the  Standard  Oil 
Company  by  the  mill  o-wmer  is  predicted  upon  negligence  in 
omitting  to  have  a  projier  valve  in  the  outlet  of  the  tank.  At 
the  trial  of  the  cause  and  upon  a  conclusion  of  the  evidence  for 
the  plaintiff,  the  court  directed  the  jury  to  find  a  verdict  for 
the  defendant."  In  passing  upon  the  liability  of  the  St-andard 
Oil  Company,  the  court  used  the  following  language : 

"  We  are  thus  brought  to  the  question  whether  crude  petro- 
leum may  properly  l>e  classified  as  a  '  dangerous  agency  within  ' 
the  meaning  of  the  rule.  Tt  is  an  extensive  article  of  commerce, 
transported  by  rail  to  all  parts  of  the  land,  shipped  by  steamers 
:tnd  sail  vessels  to  all  parts  of  the  world.  It  is  innocuous  of 
itself.  It  is  dangerous  only  when  in  considerable  quantity  it 
is  brought  in  contact  with  fire.  It  is  in  general  use  for  fuel 
and  otlier  purposes.  It  is  no  more  volatile  than  turpentine,  no 
more  explosive  than  gas;  does  not  necessarily,  in  handling,  in- 
volve immediate  danger  to  any  one.  It  is  not  a  dangerous 
agency  in  itself,  but  becomes  such  by  subjection  to  a  high  degree 
of  heat  or  from  actual  contact  Avith  fire.  The  shipment  of  such 
an  article  of  commerce  casts  upon  the  shipper  a  certain  duty  to 
the  public  —  that  of  providing  a  suitable  vehicle  for  the  petro- 
leum in  all  resi>ects  adapted  to  the  purpose  of  carriage  and  able 
to  encounter  the  usual  risks  of  transportation  reasonably  to  be 
anticipated.  We  tliink  tbat  to  l>e  the  true  limit  of  the  shipper's 
duty,  and  that  duty  as  it  appears  to  us  in  this  case  was  properly 
discharged.  The  petroleum  was  contained  in  a  tank  impervious 
to  fire.  The  shipment  reached  its  destination  in  safety.  The 
case  is  not  like  that  of  tlie  shipment  of  explosives,  the  character 
of  the  shipment  being  concealed.  Here  the  contents  of  the  tank 
was  declared  by  the  peculiar  construction  of  the  car.     The  prop- 


404  OIL    AND    GAS. 

erties  of  the  petroleum  were  known  to  the  consignee  and  to  the 
public  equally  with  the  defendant.  They  are  matters  of  com- 
mon knowledge.  There  was  here  no  disguise  and  no  conceal- 
ment. 

"  With  tlie  knowledge  (of  the  oil  leaking)  the  .company  placed 
the  car  within  three  feet  of  the  engine  and  boilers  of  the  mill, 
located  below  the  grade  of  the  railroad,  and  with  knowledge  of 
the  leakage,  sufficient,  in  view  of  the  dangerous  proximity  of 
fire,  to  the  place,  a  careful  person,  upon  diligent  inquiry,  un- 
dertook to  discharge  the  oil  in  close  proximity  to  hot  ashes,  and 
near  an  open  window  of  the  boiler  room.  We  cannot  say  that 
the  negligent  omission  of  the  valve  '  necessarily  set  the  other 
causes  in  operation,'  nor  can  we  say  that  the  injury  was  the 
natural  and  probable  consequence  of  the  negligent  act.  In 
marshalling  the  probable  consequences,  which  ordinary  sagacity 
should  have  foreseen  as  probably  resulting  from  the  omission 
of  the  valve,  it  would,  as  we  conceive,  appear  unlikely  and  ab- 
normal that  this  injury  should  result.  We  are  of  the  oinnion 
that  tlie  intervening  and  independent  act  of  the  gas  company 
was  tlie  efficient  cause,  self-operating,  by  which  the  negligent 
act  of  the  defendant  was  rendered  effective  to  an  injury  that 
was  not  the  probable  and  natural  consequence  of  the  act." 

§373.     Oil  shipped  on  trains  carrying  other  goods. 

.  If  a  railroad  company  ships  oil  on  a  train  carrying  other 
goods  and  merchandise,  it  must  take  every  available  precaution 
against  the  communication  and  spread  of  fire,  if  it  should  occur.® 
It  must  exercise  the  same  degree  of  care  in  handling  and  trans- 
porting combustible  oils  as  is  exercised  by  merchants  and  in- 
surers in  dealinff  with  such  articles.'^ 


*t3 


§374.     Shippers    liability    to    servant    of    carrier. —  Naphtha  — 
petroleum  —  dangerous  agency. 

A  shipper  of  naphtha  should  be  careful  to  so  mark  the  bar- 
rels or  casks  in  which  it  is  shipped  that  it  can  be  readily  ascer- 

«  Empire    Transportation    Co.    v.  '  Henry  v.   Cleveland,  etc.,   R.   R. 

Wamstta,  etc.,  Co.,  63  Pa.  St.  14.  Co.,  67  Fed.  Rep.  426. 


TR.VNSPOKTATION.  405 

tained  what  is  in  such  barrels  or  casks,  and  thus  put  the  servants 
of  the  carriers  on  tlieir  guard,  so  that  tliey  will  be  able  to  avoid 
danger  in  coming  in  contact  with  tlie  oil.  Thus  where  naphtha 
was  put  in  leaking  barrels  having  white  heads,  across  which  was 
written  the  words  "  Unsafe  for  illuminating  purposes,"  and  the 
naphtha  was  billed,  with  other  barrels  of  petroleum,  as  carbon 
oil,  and  an  explosion  was  caused  by  a  servant  of  the  carrier 
bringing  a  light  too  close  to  the  leaking  barrels,  it  was  held 
that  the  shipper  was  liable,  tlie  words  on  the  barrel  heads  and 
in  the  bill  of  lading  not  being  enough  to  apprise  those  handling 
the  oil  of  its  dangerous  character.  In  this  case  it  was  insisted 
that  the  servant  was  guilty  of  contributory  negligence  in  going 
into  the  car  with  a  light ;  but  it  was  held  that  the  plaintiff  could 
show  that  he  supposed  the  car  was  loaded  with  ordinary  oil  and 
prove  by  a  witness  that  there  was  no  danger  in  going  into  a  car 
loaded  Avith  such  oil,  with  a  light.  It  was  also  held  that  the 
shippers  might  show  that  wooden  barrels  were  safe,  and  that 
naphtha  was  ordinarily  shipjoed  in  that  way  by  prudent  business 
men ;  and  that  it  Avas  no  defense  that  the  carrier's  officers  had 
agreed  that  the  naphtha  might  be  shipped  in  the  manner  in 
which  it  was  put  up'.*  Petroleum,  however,  is  not  a  dangerous 
agency  within  the  rule  that  he  who  uses  it  does  so  at  his  peril 
and  must  respond  tO'  injuries  thereby  occasioned,  not  caused 
by  external  natural  consequences  or  by  the  interposition  of 
strangers.® 

§375.     Injury  to  passeng'ers. —  Train  wreck. 

A  freight  train  carrying  two  tank  cars  of  naphtha,  one  of 
kerosene  oil,  a  car  of  coke  and  a  caboose,  was  wrecked,  blocking 
the  right  of  way,  and  the  cars  became  afire.  On  the  arrival  of 
a  passenger  train,  tliose  in  charge  of  it  began  transporting  the 
passengers  around  the  wreck  to  another  train  on  the  other  side. 
A  gap  w^as  opened  in  the  fence  along  the  right  of  way  so  that 

«  Standard  Oil  Co.  v.  Tierney.  02  See  Barney  v.  Burstenbinder,  7  Lans. 

Ky.   367;    17    S.   W.  Rep.    1025;    14  210. 

L.  R.  A.  677;   13  Ky.  L.  Rep.  626;  9  Cleveland,  etc.,   Ry.   Co.  v.   Bal- 

Standard  Oil  Co.  v.  Tierney,  95  Ky.  lentine,  84  Fed.  Rep.  935 ;  56  U.  S. 

633 ;  96  Ky.  89 ;  27  S.  W.  Rep.  983.  Apps.  266 ;  28  C.  C.  A.  572. 


406  OIL    AND    GAS. 

the  passengers  could  be  transferred  aronnd  the  fire  a  safe  dis- 
tance from  it,  and  were  transferred  in  safety  to  a  place  beyond 
the  wreck  where  they  were  free  from  danger.  The  plaintifT, 
following  the  direction  of  the  company's  officers,  passed  through 
the  gap,  around  the  fire  and  burning  oil  and  re-entered  through 
a  second  gap  upon  the  right  of  way  by  passing  through  the  gap 
in  the  fence  made  by  such  officers  so  he  could  reach  the  place 
where  he  was  to  take  the  train.  After  going  through  tliis  last 
gap  he  went  back  along  the  railroad  track,  on  the  right  of  way, 
toward  tlie  wreck,  although  the  oil  was  burning  fiercely  with 
a  loud  noise,  and  arriving  at  a  point  about  two-thirds  of  the 
distance  between  the  second  gap  and  the  wreck,  he  stood  there 
half  an  hour  watching  the  fire,  when  the  naphtha  and  oil  ex- 
ploded, and  he  was  badly  burned.  When  the  explosion  oc^ 
curred,  the  traii^to  carry  the  passengers  had  not  yet  arrived ; 
and  the  evidence  of  the  company  tended  to  show  that  its  agent 
had  indicated  a  place  where  the  passengers  were  to  remain  until 
the  train  that  was  to  carry  them  had  arrived,  and  that  such  place 
was  a  safe  one,  and  if  he  had  remained  there  he  would  not  have 
been  injured.  It  was  held  that  the  dangers  were  so  apparent 
that  plaintiff  should  have  avoided  the  danger ;  that  the  railroad 
company  had  the  right  to  assume  that  he  would  occupy  the  place 
to  which  he  had  been  conducted  and  would  not  expose  himself  to 
danger ;  that  it  was  not  bound  to  restrain  him  from  going  near 
the  wreck,  that  he,  at  the  time  of  the  injury  was  still  a  passen- 
ger, having  a  right  to  complete  his  journey  on  the  company's 
cars,  and  the  taking  up  of  the  dangerous  position  near  the  burn- 
ing tank  might  bar  him  from  a  right  to  recover  damages  for 
his  injuries,  but  it  did  not  affect  his  rights  as  a  passenger;  that 
as  the  company  did  nothing  to  invite  him  to  the  place  of  danger, 
he  had  to  exercise  ordinary  care  for  his  own  safety;  that  the 
company  was  bound  to  exercise  only  ordinary  care  and  prudence, 
and  that  the  question  of  negligence  on  the  plaintiff's  part,  as 
well  as  on  the  defendant's,  were  questions  for  the  jury  to  deter- 
mine under  proper  instructions.     A  new  trial  was  granted.''' 

10  Conroy  v.  Chicago,  etc.,  Co.,  96 
Wis.  243;  70  N.  W.  Rep.  486;  38 
L.  R.  A.   419. 


TRANSPORTATION.  407 

§376.     Curiosity  seekers. —  Exploding  oil. 

A  train  of  cars  was  run  into  oil  cars  standing  on  a  side  track, 
by  reason  of  a  switch  having  l)<3en  negligently  open,  some  of  the 
tanks  burst,  and  the  oil  took  fire.  At  the  time  the  plaintiff  was 
two  miles  away.  He  went  to  the  scene  of  the  disaster,  on  ar- 
riving there  found  the  fire  burning  fiercely,  the  oil  being  on 
fire  and  making  a  loud  noise  like  steam  escaping  from  an  engine. 
He  went  ujxtn  the  premises  of  his  OA\m  free  will.  The  oil  ran 
along  the  track  and  set  fire  to  oil  tanks  tliat  had  not  been  bursted 
by  the  collision,  and  which  burst  and  injured  him.  Two  hours 
elapsed  after  the  wreck  and  before  the  explosion,  and  the  com- 
pany could  have  removed  the  unbursted  tanks  to  a  place  of  safety 
and  extinguished  the  fire.  The  plaintiff  claimed  no  warning 
had  been  given  of  the  danger  of  exploding  tanks ;  that  at  the 
time  he  was  in  the  exercise  of  due  care  for  his  own  safety,  and 
that  he  was  assisting  in  putting  out  the  fire  at  the  request  of  one 
of  the  seiwants  of  the  railroad  company.  The  court  held  that 
petroleum  only  became  a  dangerous  agency  when  heated;  that 
the  plaintiff  was  not  a  trespasser,  but  was  engaged  in  a  laudable 
work ;  tJiat  the  company  was  g^lilty  of  negligence  in  leaving  the 
switch  open  whereby  the  collision  was  occasioned,  and  also  in 
not  stopping  the  fire  or  removing  the  cars  to  a  place  of  safety  so 
the  fire  could  not  reach  them,  and  in  not  giving  a  sufficient  warn- 
ing to  the  injured  person,  and  that  if  the  plaintiff  exercised  due 
care  and  caution  he  was  entitled  to  recover.^^  A  companion  of 
the  plaintiff  was  injured,  under  the  same  circumstances  and 
conditions,  by  the  same  explosion ;  and  his  case  being  appealed 
he  was  denied  a  recovery.  The  gTound  of  the  denial  was  that 
"  negligence  to  be  actionable,  must  occur  in  a  breach  of  a  legal 
duty  arising  out  of  a  contract  or  otherwise,  or  owing  to  the  per- 
son sustaining  the  loss  " ;  and  the  court  defined  a  "  legal  duty 
to  be  "  that  which  the  law  requires  to  be  done  or  forborne  to  a 
determinate  person,  or  to  the  public  at  large,  and  as  a  correla- 
tive to  a  right  vested  in  such  iDcrsons,  or  public  at  large  " ;  that 
the  plaintiff  was  only  a  licensee,  having  no  gi*eater  rights  than 

11  Henry  v,  Cleveland,  etc.,  Ry.,  67  Fed.  Rep.  426. 


408  OIL    AND    GAS. 

a  city  fireman  called  to  extingriisli  a  fire  and  -entering  a  burning 
house ;  that  the  negligent  act  in  leaving  the  switch  open  was  a 
hreadi  of  no  duty  to  the  plaintitT,  wlio  was  two  miles  distant  at 
the  time,  and  who  voluntarily  came  to  the  scene;  and  that  the 
fact  he  was  assisting  the  servants  of  the  company'  to  put  out  the 
fire  could  not  aid  him,  for  the  danger  was  obvious.^" 

§377.     Allowing  oil  to  escape  from  pipe  line. 

A  pipe  line  company  is  bound  to  safely  keep  the  oil  it  is  trans- 
porting in  its  pipes,  and  not  allow  it  to  escape;  and  if  it  does 
escape,  to  the  damage  of  another  (such  as  spoiling  his  well  or 
springs  or  cro}>s),  it  is  liable  in  damages  for  the  injury.  Such 
an  act  is  the  creation  of  a  nuisance.^^ 

§378.     Inspection  of  pipe  line. 

It  is  the  duty  of  a  pipe  line  company  to  keep  a  careful  watch 
over  its  lines,  to  detect  leaks  and  imperfections  in  them  and  pre- 
vent oil  escaping.  If  it  do  not,  its  failure  to  do  so  may  he  such 
negligence  on  its  part  as  will  render  it  liable.  Thus  where  a 
contractor  putting  in  a  sewer  for  a  city,  imcovered  a  section  of 
an  oil  pipe  line  tliat  was  empty,  and  in  l)lasting  rock  broke  it 
apart  at  one  of  its  joints,  from  which  two  weeks  later  oil  escaped 
by  reason  of  pnmping  having  been  resumed,  causing  personal 
injuries  resulting  in  death,  the  company  was  held  liable  on  the 
ground  that  it  had  failed  to  inspect  the  line  for  two  weeks,  at 
the  end  of  which  time  the  pumping  of  oil  was  resumed  and 
continued  for  a  period  of  two  and  a  half  hours  Avhen  it  was 
notified  by  the  employees  at  the  other  end  of  the  line  that  no  oil 
was  fiov/ing.^* 

12  Cleveland,  etc.,  Ry.  Co.  v.  Bal-  i3  Hauk   v.    Tidewater   Pipe   Line 

lentine,  28  C.  C.  A.   572;    56  U.  S.  Co.,   153  Pa.  St.  366;   26  Atl.   Rep. 

App.  266;  84  Fed.  Rep.  935.     As  to  644.     See   Clements  v.   Philadelphia 

,the  right  of  a  city  fireman>injured  Co..   184   Pa.   St.   28;    41   W.   N.   C. 

in  a  building  while  extinguishing  a  321;  38  Atl.  Rep.  1090;  39  L.  R.  A. 

fire,  see  Gibson  v.  Leonard,  143  111.  532.     See   Lee   v.   Vacuum   Oil    Co., 

182;    32   N.   E.  Rep.    182,   affirming  54  Hun  156;  7  N.  Y.  Supp.  426. 

37     111.     App.     344;     Woodruff     v.  i*  Lee  v.  Vacuum  Oil  Co.,  54  Hun 

Bowen,  136  Ind.  431;  34. N.  E.  Rep.  156;  7  N.  Y.  Supp.  426.     The  ques- 

1113.  tion  of  negligence  was  held  to  be  a 

proper  one  for  the  jury. 


TR.VXSPOKTATIOX.  409 

§379.     Oil  illegally  stored  at  railroad  station. 

Oil  was  stored  or  permitted  to  remain  at  a  railroad  station 
in  violation  of  a  statute,  or  rather  it  had  been  kept  there  longer 
than  the  statute  permitted  it  to  be  kept.  There  were  thirty 
barrels,  some  full,  some  partly  full  and  some  empty.  The  plat- 
form on  which  these  barrels  were  standing  was  about  four  feet 
above  the  ground,  old  and  rotten,  had  rubbish  beneath  it,  and 
was  soaked  with  oil.  A  teamster,  not  connected  with  the  rail- 
road company,  but  having  a  right  to  go  upon  the  premises,  while 
upon  this  platform,  lighted  his  pipe  with  a  match  and  threw 
downi  the  burning  mat<:'li  on  the  oil  soaked  boards,  from  which 
a  fire  was  started.  The  fire  spread  to  and  burned  the  pro]ierty 
of  others.  The  court,  assuming  that  tlie  company  had  violated 
the  statute  by  keeping  the  oil  on  the  platform  longer  than  the 
statute  allowed  it  to  do  so,  held  that  the  proximate  cause  of  the 
injury  was  the  act  of  the  teamster  and  refused  to  consider  any- 
thing back  of  that  act,  on  the  ground  that  the  company  could 
not  anticipate  that  a  res]X)nsible  person  would  throw  a  lighted 
match  in  the  place  he  did  and  start  a  fire.  The  court  also  de- 
clined to  hold  that  the  negligence  of  the  company  was  concur- 
rent with  that  of  the  teamster,  for  the  reason  that  the  negligence 
of  the  former  preceded  that  of  the  latter  and  was  an  existing 
fact  when  his  negligence  intervened ;  and  directed  a  verdict  for 
the  defendant" 

§380.     Storing  oil  in  warehouse. 

Oil  of  a  highly  infiamniable  kind,  awaiting  shipment,  had 
been  stored  for  two  days  in  a  warehouse  before  ^he  warehouse 
was  set  on  fire.  The  Avarehouse  was  set  on  fire  without  the 
neglect  of  the  owner;  and  the  fire  from  it  spread  to  an  adjoin- 
ing warehouse  and  destroyed  it  with  the  greater  part  of  its 
contents.  The  owner  of  the  second  warehouse  sued  the  owner 
of  the  first,  claiming  that  because  of  the  explosion  of  the  oil 

15  Stone  V.  Boston,  etc..  Ry..  171 
Mass.  .536;  51  X.  E.  Rep.  1;  41  L. 
R.  A.  794. 


410  OIL    AND    GAS. 

the  fire  from  the  first  warehouse  was  suddenly  precipitato(i 
upon  his  warehouse,  and  that  if  it  had  not  been  for  the  explod- 
ing oil,  a  gi-eater  portion  of  the  contents  of  his  warehouse  would 
have  been  removed  before  the  tiro,  which  was  burning  in  the 
warehouse  at  the  time  of  the  cxpl<.>sion,  could  have  extended  to 
his  building.  The  court  held  that  tlie  questions  of  proximate 
cause  and  whetlier  the  oil  had  lM?en  in  the  warehouse  for  an 
unreasonable  length  of  time  were  i'nv  tiic  jurv,  and  lli:it  the 
plaintiff  might  show  that  the  warehouse  and  its  tloor  were  soaked 
with  oil.'" 

§381,     Thief  setting  oil  on  fire. 

Crude  petroleum  was  carried  in  a  tank  on  a  lighter  used  in 
the  oil  trade.  The  lighter,  with  others,  lay  at  a  pier,  with  no 
w^atchman  on  boJIrd.  Tt  was  forced  open  by  a  thief,  who,  in 
exi>loring  the  locker  %vith  a  lighted  match,  set  fire  to  the  gas 
or  fumes  arising  from  the  petroleum,  thcrolvy  causing  an  explo- 
sion and  a  fire.  The  fire  destroyed  the  lighter  aiul  another  one 
lying  alongside  of  it.  Suit  was  brought  against  the  owner  of 
the  lighter  on  which  the  explosion  occurred  to  hold  him  liable 
for  the  destruction  of  the  other  lighter;  but  the  court  held  that 
he  Avas  not  liable,  for  the  escape  of  the  gas  into  the  locker  was 
an  accident,  and  the  presence  of  a  lighted  match  in  the  locker 
in  the  hands  of  a  thief  was  not  the  natural  result  of  tlie  absence 
of  a  watchman." 

16  Wright    V.    Chicago,    etc.,    Ry.  i7  Sofiled  v.  Sommers,  9  Ben.  526 ; 

Co.,  27  111.  App.  200.  Fed.  Cas.  No.  13,  157. 


CHAPTER  XX. 

LEGISLATIVE  AND  MUNICIPAL  CONTROL. 

§382.  Gas  a  dangerous  agency. —  Police  powers. 

§383.  Regulating  pressure  in  pipes. 

§384.  Prohibiting  transportation  of  gas  bej'ond  the  State. 

§385.  Plugging  abandoned  wells. —  Waste  of  gas. 

§386.  Preventing  waste  of  gas. —  Flambeau  lights. 

§387.  Waste  of  gas  in  operating  oil  well. 

§388.  Inspection  of  oil.— Tests. 

§389.  Ordinance  regulating  storage  of  oil. 

§300.  Regulating  sale  of  naphtha  by  United  States. 

§3!)!.  A  diarter  is  a  contract. 

§392.  City  cannot  fix  rates  without  statutory  authority. 

§393.  Municipality  regulating  rates  after  ordinances  granted. 

§394.  Rates  fixed  in  ordinance  granting  franchise. 

§395.  Rates  fixed  by  city  in  its  consent  to  assignment  of  franchise  right. 

§396.  Gas  company  accepting  provision.s  of  subsequent  ordinance.  , 

§39".  Prohibition  to  change  for  specified  time. 

§398.  Police  power.— Rates. 

§399.  Municipality  regulating  gas  companies. 

§400.  Power  to  diange  rates. —  Rates  established  must  be  rea.sonable. 

§401.  Gas  companies  <iuasi  public  corporations. —  Rates  may  be  changed. 

§402.  Same  continued.  —  Rates  may  be  changed. 

§403.  Same  continued. —  Riites  may  be  changed. 

§404.  ^lunicipality  delegating  power  to  change  rates. 

§405.  Annexing  territory  after  contract  made. 

§406.  Police  power  regulations. 

g382.     Gas  a  dangerous  agency  —  police  powers. 

Gas,  and  especially  natural  ijas,  has  always  been  regarded  as 
a  dangerous  agency,  and  must  be  used  with  care  whenever  it 
comes  in  contact  wnth  propert.v  or  persons.  That  it  is  a  danger- 
ous agency  is  a  matter  of  common  knowledge,  of  which  the 
courts  will  take  judicial  notice.^  It  is  in  a  high  degree  inflam- 
mable and  explosive.  Xot  only  is  it  dangerous  as  an  explosive, 
but  it  is  dangerous  to  life  and  injurious  to  herbage,  shrubbery 

1  Sec.  41. 

411 


412  OIL    AND    GAS. 

and  growing  trees  under  certain  circumstances.  It  is  in  fact 
as  dangerous  an  agency  as  gunpowder,  which  has  always  been 
regarded  as  a  proper  subject  of  legishition,  even  to  the  extent  of 
excluding  it  from  thickly  settled  communities.  Therefore, 
under  the  i>olice  powers  of  a  State,  it  is  a  proper  subject  of 
regulation.  "  The  public  safety  and  welfare,"  said  the  Su- 
preme Court  of  Indiana,  "  is  the  highest  consideration  in  all 
legislation,  and  to  this  consideration  private  rights  nuist  yield. 
'No  man  has  a  right  to  so  use  a  dangerous  species  of  property 
as  to  put  the  safety  of  others  in  peril.  Liberty  does  not  imply 
the  right  of  one  man  to  so  use  property  as  to  endanger  the 
property  of  others,  nor  does  ownership  imply  any  such  right. 
This  is  rudimental.  It  must,  therefore,  be  ti*ue  that  the  o\vTier 
of  property  of  such  dangerous  nature  as  to  require  regulations 
to  prevent  injur;)^to  others  can  have  no  right  paramount  to  tlie 
police  power.  It  is  not  too  much  to  say  tliat  against  the  police 
power  there  is  no  such  thing  as  a  vested  right.  If  the  position 
of  the  appellee's  counsel  is  tenable,  then  after  a  corporation  has 
invested  money  in  natural  gas  pipes,  machinery  and  appliances, 
there  can  be  no  subsequent  legislation,  although  the  use  of  the 
pipes  bought  might  put  in  peril  towns,  houses,  and  even  human 
life  along  the  entire  line.  The  law  is  subject  to  no  such  re- 
proach as  a  rule  like  that  for  which  appellees  contend  would 
bring  upon  it.  JSTo  investment,  however  great,  can  so  vest  a 
right  as  to  preclude  the  just  exercise  of  a  governmental  power 
such  as  that  under  which  regulations  for  the  prot-ection  of  the 
health  and  safety  of  persons  are  enacted.  This  principle  is 
supported  by  many  decisions."  ^ 

§383.     Regulating  pressure  in  pipes. 

In  the  exercise  of  its  police  ]X)wer  for  the  protection  of  life 
and  property,  a  State  may  regulate  and  prescribe  the  pressure 
in  the  gas  mains  of  a  company ;  and  it  may  fix  a  limit  for  such 

2Jamieson    v.     Indiana     Natural  Com.  Rep.  613;   Benedict  A^  Colum- 

Gas,  etc.,  Co.,  128  Ind.  555 ;  28  N.  E.  bus,  etc.,  Co.,  49  N.  J.  Eq.   23 ;   23 

Rep.   76;   34  Amer.   and  Eng.  Corp.  Atl.     Rep.     485;      Given     v.     State 

Cas.  1;  12  L.  R.  A.  652;  3  Interstate  (Ind.),  66  N.  E.  Rep.  750. 


LEGISLATIVE    CONTROL.  413 

pressure  even  though  it  has  the  effect  to  prevent  the  conveyance 
or  transportation  of  gas,  as  natural  gas,  beyond  the  limits  of  the 
State,  a  thing  of  itself  a  State  cannot  prevent.  "  The  pipes  for 
the  transportation  of  the  gas,"  said  the  Supreme  Court  of  In- 
diana, "  must  be  laid  in  our  soil ;  they  must  cross  our  fanns, 
pass  through  our  towns,  and  cross  our  highways.  There  are 
many  persons,  many  houses,  and  much  property  along  the  line, 
within  the  borders  of  this  State.  There  is  danger  to  our  in- 
habitants, and  to  their  property  from  the  use  of  defective  or 
insecure  pipes,  as  well  as  from  an  improper  use  of  them.  If  a 
volatile,  inflammable,  and  explosive  substance,  such  as  natural 
gas,  can  not  be  conveyed  in  pipes,  under  an  unsafe  pressure, 
without  danger  to  those  whom  it  is  the  duty  of  the  common- 
Avealth  to  protect,  then  regulation  is  not  unreasonable  or  illegal 
in  itself.  The  danger  is  to  our  citizens  in  their  own  houses,  and 
on  their  own  thoroughfares.  It  cannot,  we  suppose,  be  success- 
fully asserted  that  a  gas  company  could  use  pipes  of  paper,  or  of 
spider-webs,  at  their  pleasure ;  and  yet,  if  there  is  no  power  in 
the  State  to  regulate  tlie  character  of  the  pipes,  or  the  like,  this 
conclusion  must  result.  They,  indeed,  may  do  what  they 
please.  The  danger  to  be  avoided  is  within  the  State;  the  pro- 
tection of  the  law  ought,  upon  every  principle  of  justice,  to  be 
commensurate  with  the  danger.  The  legislation  is  local,  is  for 
local  protection,  and  for,  presumptively,  at  least,  no  other  pur- 
pose. Gas  companies  acquire  the  right  to  lay  pipes  by  virtut 
of  the  power  of  eminent  domain  resident  in  the  State,  and  surely 
if  they  take  the  benefit  of  our  laws,  and  use  our  lands  and  min- 
erals, they  must  yield  obedience  to  such  laws  as  are  framed  for 
the  local  protection.  ...  It  seems  true  beyond  fair  con- 
troversy that  the  State,  by  virtue  of  its  inherent  jK)wer,  may 
provide  that  pipes  shall  be  laid  in  trenches,  or  shall  Ix^  of  suffi- 
cient strength  to  be  safe.  Otherwise  they  might  be  laid  on  the 
ground  subject  to  the  action  of  the  elements,  or  1x3  of  inadequate 
strength  and  thus  be  fruitful  of  danger  to  persons  and  property. 
It  also  seems  entirely  clear  that  the  State  may  declare  that  gas 
shall  not  be  confined  in  insufficient  tanks  or  reservoirs,  as  was 
done  respecting  petroleum  in  States  where  it  is  obtained.     If 


414  OIL    AND    GAS. 

it  be  true  tJiat  such  regulations  may  be  made  it  must  also  be 
true  that  pressure  may  be  regulated,  and  that  the  State  must, 
to  a  gTeat  extent,  be  judge  of  the  nature  and  character  of  the; 
regulations  required.  The  local  character  of  such  a  substance 
as  natural  gas  is,  Ave  repeat,  marked  and  peculiar.  It  is  a 
natural  product,  and  its  source  is  in  the  soil,  or  rocks  of  the 
earth.  It  is  as  strikingly  local  as  coal  or  petroleum,  and  yet 
no  one  has  ever  questioned  the  power  of  a  State  to  enact  laws 
governing  mining.  If  it  be  not  true  that  the  mining  and  con- 
veyance of  natural  gas  may  be  regulated  for  the  protection  of 
persons  and  property,  it  may  be  true  that  many  mining  laws 
are  void.  Coal  oil  is  subject  to  inspection  and  regulation,  and 
so  must  be  natural  gas,  for  it  is  more  dangerous  than  coal  oil. 
It  is  so  essentially  local  that  only  local  regulations  can  be  ef- 
fective  or  appropriate.  It  is  found  in  very  few  localities,  and 
the  character  of  locality  is  impressed  upon  it  more  clearly  and 
strongly  tlian  upon  almost  any  other  natural  product  in  the 
world."  It  was  held  in  pursuance  of  this  line  of  reasoning, 
that  a  statute  providing  that  gas  pipes  for  transporting  of 
natural  gas  should  be  tested  to  at  least  four  hundred  pounds 
pressure  to  the  square  inch,  and  gas  "  should  not  be  transjxtrted 
in  such  pipes  at  a  pressure  exceeding  three  hundred  pounds  per 
square  inch,  or  otherwise  than  by  the  natural  pressure  of  the 
gas  flowing  from  the  wells,"  was  valid ;  although  the  effect  of 
this  regulation  was  such  that  gas  could  not  be  transported  be- 
yond the  State  line  where  the  distance  it  was  desired  to  trans- 
port it  was  a  long  one.^ 


sjamieson  v.  Indiana,  etc.,  Co.,  Ind.  679;  59  N.  E.  Rep.  169.  In 
128  Ind.  555 ;  28  N.  E.  Rep.  76 ;  34  this  last  case  it  was  held  that  an  in- 
Am.  and  Eng.  Corp.  Cas.  1;  12  L.  dividual  cannot  maintain  an  injune- 
R.  A.  652;  3  Inter.  Com.  Rep.  613;  tion  to  prevent  an  unlawful  trans- 
Benedict  V.  Construction,  etc.,  Co.,  portation  of  gas,  unless  he  suffers 
49  N.  J.  Eq.  23;  23  Atl.  Rep.  485;  an  injury  peculiar  to  himself.  See 
IManufacturers'  Gas  and  Oil  Co.  v.  also  Richmond  Natural  Gras  Co.  v. 
Indiana,  etc.,  Co.,  155  Ind.  566;  58  Enterprise  Natural  Gas  Co.  (Ind. 
N.  E.  Rep.  851;  Manufacturers'  Gas  App.),  66  N.  E.  Rep.  782. 
and  Oil  Co.  v.  Indiana^  etc.,  Co.,  156 


LEGISLATIVE    CONTROL.  '  415 

§384.     Prohibiting  transportation  of  gas  beyond  the  State. 

Natural  gas  is  an  article  of  commerce,  although  not  an  or- 
dinary article  of  commerce.  While  in  the  earth  it  is  not  a  com- 
mercial commodity ;  it  becomes  so  only  when  it  ceases  to  be  a 
part  of  the  real  estate  and  becomes  personal  property.  So  far 
as  it  is  a  commercial  commodity  the  State  cannot  prohibit  its 
transportation  to  another  State  by  direct  legislation ;  and  a 
statute  enacted  for  that  purpose  is  void,  on  the  ground  that  it  is 
an  infringement  of  that  clause  of  the  Federal  Constitution  giv- 
ing Congress  the  right  to  regulate  commerce  between  the  States.* 
But  this  does  not  prevent  a  reasonable  regulation  of  the  pres- 
sure in  the  pipes,  although  the  effect  of  such  regulation  is  to 
prevent  the  transportation  of  gas  a  long  distance,  and  to  a  very 
great  extent  confine  its  use  to  the  limits  of  the  State.^ 

§385.     Plugging  abandoned  wells  —  waste  of  gas. 

A  penal  statute  which  requires  all  wells  to  be  so  used  as  to 
prevent  the  escape  of  gas  or  oil  into  the  open  air,  without  being 
confined  in  pipes  "  or  other  safe  receptacles  for  a  longer  period 
than  two  days  next  after  "  it  has  been  struck  in  such  wells ;  re- 
quiring all  abandoned  wells  to  be  plugged  in  a  certain  manner ; 
and  providing  that  if  the  o^vner  does  not  plug  them  within  the 
two  days'  limit  anyo^\aier  of  lands  adjacent  to  them  or  in  the 
vicinity  may  enter  and  plug  them  and  recover  the  cost  of  plug- 
ging from  their  owner,  is  a  valid  exercise  of  the  public  power ; 
and  the  State  may,  in  its  sovereign  capacity,  maintain  a  suit  to 
enjoin  waste  in  violation  of  such  statutes,  on  the  ground  that 
such  waste  is  a  nuisance.  The  court  said,  in  passing  on  such  a 
statute,  that  natural  gas  in  the  ground  was  no  more  tlie  prop- 
erty of  the  owner,  so  long  as  it  remained  there,  than 
the  air  or  sunshine  that  floated  over  such  ground ;  and  therefore 

*  State  V.   Indiana,   etc.,   Co..   120  128  Ind.  55.5;  28  X.  E.  Rep.  76;   34 

Ind.    575;    22   N.   E.   Rep.    778;    29  Am.   and  Eng.  Corp.  Cas.   1;    12  L. 

Amer.  and  Eng.  Corp.  Cas.   237;   6  R.  A.  652;  3  Inter.  Com.  Rep.  613; 

L.   R.    A.   579;    2   Inter.   Com.  Rep.  Benedict  v.   Columbus  Construction 

758.  Co..  49  N.  J.  Eq.  23;   23  Atl.  Rep. 

5  Jamieson   v.    Indiana,    etc.,    Co.,  485. 


416  OIL    AXl)    GAS. 

the  claim  made  that  such  a  statute  prohibited  the  owner  of  the 
gas  to  do  with  it  as  he  pleased  was  not  well  taken.  "  It  is  not 
the  use  of  unlimited  quantities  of  gas,"  said  the  court,  "  that 
is  prohibited,  but  it  is  the  waste  of  it  that  is  forbidden.  The 
object  and  policy  of  that  inhibition  is  to  prevent,  if  possible,  the 
exhaustion  of  the  storehouse  of  nature,  wherein  is  deposited  an 
element  that  administers  more  to  the  comfort,  happiness,  and 
well  being  of  society  than  any  other  of  the  bounties  of  the  earth. 
Even  if  the  appellee  cannot  draw  oil  from  its  well  without 
wasting  gas,  it  is  not  denied  that  it  may  draw  gas  therefrom, 
and  utilize  it  without  wasting  the  oil.  But,  even  if  it  cannot 
draw  oil  from  such  wells  without  wastiug  gas,  and  is  forbidden 
by  injunction  so  to  do,  it  is  only  applying  the  doctrine  that  the 
owner  must  so  use  his  own  property  as  not  to  injure  others.  It 
may  use  its  weUs  to  produce  gas  for  a  legitimate  use,  and  must 
so  use  tliem  as  not  to  injure  others  or  the  community  at  la:ge. 
The  continued  waste  and  exhaustion  of  the  natural  gas  of  In- 
diana tbrough  appellee's  wells  would  not  only  deny  to  tlie  in- 
habitants the  many  valuable  uses  of  the  gas,  but  the  State, 
whose  many  quasi-public  corporations  have  many  millions  of 
dollars  invested  in  supplying  gas  to  the  State  and  its  inhab- 
itants, will  suffer  the  destruction  of  such  corpora  cions,  tlie  loss 
of  such  investments  and  a  source  of  large  revenues.  To  use 
appellee's  wells  as  they  have  been  doing,  they  injure  thousands 
and  perhaps  millions  of  the  people  of  Indiana,  and  the  injury, 
the  exhaustion  of  natural  gas,  is  not  only  an  irreparable  one, 
but  it  will  be  a  gi-eat  public  calamity.  The  oil  appellee  pro- 
duces is  of  very  small  consequence  as  compared  Avitli  that 
calamity  which  it  mercilessly  and  cruelly  holds  over  the  heads 
of  the  people  of  Indiana.  .  .  .  We  had  i>etroleum  oil  more 
than  a  third  of  a  century  before  its  discovery  in  this  State,  im- 
ported from  other  Stages,  and  we  could  continue  to  do  so  if  the 
production  of  oil  should  cease  in  this  State.  But  we  cannot 
have  the  blessing  of  natural  gas  unless  measures  for  the  preser- 
vation tliereof  in  this  State  are  enforced  against  the  lawless. 
We  therefore  conclude  that  the  facts  stated  in  the  complaint 
make  a  case  of  a  public  nuisance  Avhich  the   appellant    [the 


LEGISLATIVE    COXTROL. 


417 


State]  has  a  right  to  have  abated  bv  injunction."  "  On  api)eal 
this  case  was  affirmed  by  the  Supreme  Court  of  the  United 
States/ 

g386.     Preventing  waste  of  gas  —  flambeau  lights. 

The  State  bv  statute  may  ]>revent  the  waste  of  natural  gas ; 
and  as  the  burning  of  gas  in  flambeau  lights,  whetlier  in  the 
countrv  or  in  the  citv,  is  -a  vcrv  wast-eful  method  of  securing 
light,  it  may  prohibit  its  use  in  that  manner,  allowing  its  use 
in  "  jumbo"  burners  enclosed  in  glass  globes  or  in  other  ways 
that  are  not  wasteful.  Such  a  statute  does  not  deprive  an  indi- 
vidual of  his  proj)crty  without  due  process  of  law  or  without 
just  compensation,  nor  ''  grant  to  any  citizen,  or  class  of  citi- 
zens, privileges  or  immunities  which  upon  the  same  terms  "  do 
"  not  equally   belong  to   all   citizens."     ''  The   act,"    said   the 


c  State  V.  Ohio  Oil  Company,  150 
Ind.  21;  4fl  N.  E.  Rep.  809;  47  L.  R. 
A.  627;  Given  v.  State  (Ind.),  GO 
X.  E.  Rep.  750. 

"  Ohio  Oil  Co.  V.  Indiana.  177  U. 
S.  190;   20  Sup.  Ct.  Rep.  570. 

Such  a  statute  must  be  strictly 
construed.  Under  the  Ohio  statute 
it  must  appear  in  the  petition  to 
recover  the  penalty  given  by  the 
statute  that  the  complainant  is  a 
resident  of  the  county  where  the 
suit  is  brought;  but  such  defect 
must  be  taken  advantage  of  by  spe- 
cial demurrer  particularizing  such 
defect.  Some  act  must  be  shown 
indicating  the  defendant's  inten- 
tion to  abandon  the  well.  As  long 
as  the  casing  remains  in  the  well, 
and  prevents  water  from  penetrat- 
ing the  oil-bearing  rock,  the  penalty 
is  not  incurred;  but  it  is  not  neces- 
sary to  aver  that  the  casing  has 
been  drawn.  State  v.  Oak  Harbor 
Gas  Co.,  18  Ohio  Cir.  Ct.  Rep.  751; 
4  Ohio  Cir.  Ct.  Dec.  158;  affirmed 
53  Ohio  St.  347;  41  X.  E.  Rep.  584. 


Under  a  .statute  declaring  it  un- 
lawful for  any  person  to  turn  off 
any  valve  belonging  to  any  person 
furnishing  gas  to  consumers  with- 
out permission  of  the  owner,  the 
offense  is  committed  by  turning  off 
the  valve  without  reference  to  the 
intent  of  the  doer.  State  v.  ^loore, 
27  Ind.  App.  83;  60  X.  E.  Rep.  955. 

A  statute  providing  that  "  it  shall 
Ix'  unlawful  for  any  person,  firm  or 
corporation  having  possession,  or 
control,  of  any  natural  gas  or  oil 
well,  whether  as  contractor,  owner, 
lessee,  agent,  of  manager,  to  allow 
or  permit  the  flow  of  gas  or  oil  from 
any  such  well  to  escape  into  the 
open  air,  without  being  confined  in 
such  well  or  proper  pipe,  or  other 
safe  receptacle,  for  a  longer  period 
than  two  days  next  after  gas  or  oil 
shall  have  been  struck  in  such  well," 
is  valid,  and  is  not  invalid  because 
of  the  shortness  of  the  period  in 
which  it  must  be  secured.  Given  v. 
State  (Ind.),  66  N.  E.  Rep.  750. 


418  OIL    AND    GAS. 

court,  "  in  no  way  deprives  tlie  owner  of  the  full  and  free  use  of 
his  property.  It  restrains  him  from  wasting  the  gas  to  the  in- 
jury of  others,  to  tlie  injury  of  the  public."  The  court  likened 
such  a  statute  to  one  regulating  fishing  or  hunting,  which 
was  enacted  to  prevent  unusual  destruction  of  fish  or  game,  and 
therefore  secure  their  extinction  as  food  products.® 

§387.     Waste  of  gas  in  operating  oil  well. 

A  statute  prohibiting  the  waste  of  gas  is  not  invalid  even 
tliough  such  waste  is  only  incident^al  to  the  operation  of  a  well, 
in  order  to  take  out  oil ;  and  unless  such  waste  is  not  permitted 
it  cannot  be  operated.  Xor  is  it  invalid  even  though  the  value 
of  the  gas  is  trivial  compared  with  the  value  of  the  oil  that  can 
be  taken  out  of  tlie  well  by  its  operation.  In  fact,  though  the 
statute  is  practically  prohibitory,  so  far  as  its  operation  as  to  an 
oil  well  is  concerned,  still  the  statute  for  that  reason  is  not 
invalid.^ 

§388.    Inspection  of  oil  —  tests. 

There  is  no  doubt  that  the  State  has  the  power  to  inspect 
illuminating  oil  offered  for  sale,  or  that  will  be  offered ;  and  to 
charge  the  expense  of  such  inspection  to  its  owner.^"  It  may 
prescribe  a  test  for  such  oil,  requiring  it  to  stand  a  certain  rea- 
sonable number  of  degrees  of  heat  without  exploding  or  ignit- 
ing. Such  is  only  a  reasonable  regulation  for  the  safety  of  the 
inliabitants  of  the  State."  And  there  is  no  doubt  that  a  statute 
providing  for  an  inspection  of  oil  may  exempt  oils  from  inspec- 
tion inspected  in  another  State  under  a  similar  statute."     But 

sTownsendv.  State,  147  Ind.  624;  n  Patterson   v.    Kentucky.    07    U. 

47  N.  E.  Rep.  19;  37  L.  R.  A.  294;  S.   501;    Patterson  v.   Kentucky.   11 

62  Am.  St.  Rep.  477.  Bush.    311;     21    Amer.    Rep.    220; 

9  Ohio  Oil  Co.  V.  Indiana,  177  U.  Foote  v.  Fire  Department,  5  Hill  99 

S.  190;  20  Sup.  Ct.  Rep.  ^76;  State  (gunpowder)  ;  Williams  v.  Augusta, 

V.  Ohio  Oil  Co.,  150  Ind.  21;  49  N.  4  Ga.  509    (gunpowder)  ;  Davenport 

E.  Rep.  809 ;  47  L.  R.  A.  627 ;  Given  v.     Richmond,     81     Va.    636     (gxm- 

V.  State   (Ind.),  66  N.  E.  Rep.   750.  powder). 

loBurkhardt  V.  Striger   (Ky.).67  12 /«   re  Robinson,   28   Tex.    App. 

S.    W.    Rep.    270;    Louisiana    State  511;   13  S.  W.  Rep.  786. 
Board  v.  Standard  Oil  Co.,  107  La. 
Ann.  — ;  31  So.  Rep.  1015. 


4-10 

LEGISLATIVE    CONTROL.  -i-^^ 

a  city  charter  authorizing  the  passage  of  all  ordinances  neces- 
sary for  the  trade,  coiniuerce,  health,  and  good  government  oi 
a  city  does  not  authorize  the  passage  of  an  ordinance  requiring 
vendors  of  illuminating  oils  to  pay  the  inspector  fees  for  in- 
specting the  oil.'^ 
§389.     Ordinance  regulating  storage  of  oil. 

Under  a  statute  authorizing  a  municipality  to  regulate  and 
prevent  the  storage  of  combustible  or  explosive  material,  an 
ordinance  prohibiting  the  keeping  or  storing  of  explosive  oils 
within  a  distance  of  one  thousand  feet  of  any  dwelling,  house, 
store  room,  building,  barn,  shed  or  other  like  structure,  is  rea- 
sonable and  valid,  even  as  applied  to  a  plant  in  operation  before 
any  other  buildings  were  erected  in  the  neighborhood." 

§390.     Regulating  sale  of  naphtha  by  United  States. 

Congress  cannot  legislate  up.n  the  ^sale  of  naphtha  ^vithin 
the  States,  nor  regulate  its  sale  therein.'' 

§391.     A  charter  is  a  contract. 

If  a  State  incorporate  a  gas  company  for  a  particular  mu- 
nicipality, or  a  municipality  grant  it  the  right  to  occupy  its 

13  ^Yaters-Pierce  Oil  Co.  v.  McEI-  valid,  coming  within  Ibe  P'>lice  pow- 

roy  (Tex.  Cir.  App.),  47  S.  W.  Rep.  er.     Dobbins  v.  Los  Angeles   (Cal.), 

272.     As  to  validity  of  appointment  72  Pac.  Rep.  !)<0. 

of  officers  in  Alabama,  see  State  v.  -United    States    v.    Dermitt,    8 

McGough,  118  Ala.  159;  24  So.  Rep.       ^Yall.  41- 

*  Where  a  statute  made  it  a  tine  to 

^^t  statute  providing  that  ilhimiu-  sell  naphtha  under  any  assumed 
atJng  o  s  IrU  be  inrpected.  applies  name,  and  the  defendant  claimed 
to  gasoline,  although  it  must  be  that  the  article  sold  had  been  corn- 
first  transformed  into  a  vapor.  Buvk-  bined  with  chemical  agents  so  as  to 

hardt  V.    Striger    (Ky.),   67    S.   W.  counteract  its  ^-P^^^^  ^'f  lin 

^       ^,Q  naphtha;    it   was  held   that   an  in- 

?4' standard    Oil    Co.    v.    Danville,  struction  telling  the  jury  they  were 

199  111.  50;  64  N.  E.  Rep.  1110,  af-  to   decide    whether   the   article   sold 

firming  101  111.  App.  65."  "  was  substantially  naphtha  or  not 

An  ordinance  making  it  unlawful  afforded    him    no    ground    of    com- 

to    erect    and    maintain    gas    works  plaint.      Commonwealth     v.     W  ent- 

within  certain  limits  in  the  city  is  worth,.  118  Mass.  441. 


420 


OIL    AND    GAS. 


Streets  and  supply  its  inhabitants  with  gas,  a  contract  is  at 
once  created,  in  the  first  case  between  the  State  and  the  company, 
and  in  the  second  between  the  nninicipality  and  the  company, 
which  is  protected  by  that  chuise  in  the  Constitution  of 
the  United  States  prohibiting  a  State  from  impairing  the  obli- 
gation of  a  contract."  Of  course,  it  must  be  understood  that  in 
granting  a  gas  company  a  charter  the  State  does  not  part  with 
its  police  power  to  protect  its  inhabitants  in  their  health  and 
property ;  ^^  and  in  granting  it  the  right  tlic  municipality  does 
not  part  with  its  power  to  also  protect  its  inhabitants  in  both 
their  health  and  property.^^ 


16  New  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  115  U.  S.  650;  10 
Am.  and  Eng.  Corp.  Cas.  689;  6 
Sup.  Ct.  Rep.  252;  Louisville  Gas 
Co.  V.  Citizens'  G;?l  Co.,  115  U.  S. 
683;  6  Sup.  Ct.  Rep.  265;  10  Am. 
and  Eng.  Corp.  Cas.  671  (reversing 
81  Ky.  263;  1  Am.  and  Eng.  Corp. 
Cas.  156)  ;  State  v.  Laclede  Gaslight 
Co.,  102  Mo.  472;  22  Am.  St.  Rep. 
789;  34  Am.  and  Eng.  Corp.  Cas. 
49;  14  S.  W.  Rep.  974;  15  S.  W. 
Eep.  383 ;  Richmond  County  Gas- 
light Co.  V.  Middletown,  59  N.  Y. 
228;  Detroit  v.  Detroit,  etc.,  Co., 
184  U.  S.  368;  22  Sup.  Ct.  Rep.  410; 
Southwestern,  etc.,  Co.  v.  Joplin, 
1,13   Fed.  Rep.  817. 

3 'New  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  supra;  Jamieson  v. 
Indiana  Natural  Gas  Co.,  128  Ind. 
555;  28  N.  E.  Rep.  76;  12  L.  R.  A. 
652;  34  Am.  and  Eng.  Corp.  Cas. 
1:  3  Inter.  Com.  Rep.  613;  Bath 
Gaslight  Co.  v.  Claffy,  74  Hun  638 ; 
26  N.  Y.  Supp.  287;  Morristown  v. 
East  Tennessee,  etc.,  Co., ^115  Fed. 
Rep.  304;  Mason  v.  Ohio,  etc.,  Co., 
52  W.  Va.  — ;  41  S.  E.  Rep.  418. 
18  Northern  Liberties  v.  Northern 
Liberties  Gas  Co.,  12  Pa.  St.  318; 
Walla  Walla  v.  Walla. Walla  Water 
Co.,  172  U.  S.  1;  19  S.  Ct.  Rep.  77; 
Fertilizing  Co.  v.  Hyde  Park,  97  U. 


S.  059;  Butchers'  Union,  etc.,  Co.  v. 
Crescent  City,  etc.,  Co.,  Ill  U.  S. 
746;  4  Sup.  Ct.  Rep.  652;  Coates 
v.  ;Mayor,  7  Cow.  585;  Mason  v. 
Ohio  River  R.  R.  Co.,  52  W.  Va. 
— :  41  S.  E.  Rep.  418. 

In  the  Walla  Walla  case  the  court 
said:  ""Hie  grant  of  a  right  to 
supply  gas  or  water  to  a  municipal- 
ity and  its  inhabitants  through 
pipes  or  mains  laid  in  the  street, 
upon  condition  of  the  performance 
of  its  service  by  the  grantee,  is 
the  grant  of  a  franchise  vested  in 
the  State,  in  consideration  of  the 
performance  of  a  public  service,  and 
after  the  performance  by  the 
grantee,  is  a  contract  protected  by 
the  Constitution  of  the  United 
States  against  State  legislation  to 
impair  it." 

See  Mason  v.  Ohio  River  R.  R. 
Co..  52  W.  Va.  — ;  41  S.  E.  Rep. 
418;  Traverse  City  Gas  Co.  v.  Tra- 
verse City  (Mich.),  89  N.  W.  Rep. 
574 ;  People  v.  Chicago  Gas  Trust 
Co..  130  111.  268;  22  N.  E.  Rep. 
798;  8  L.  R,.  A.  497. 

After  the  right  to  occupy  the 
streets  has  been  granted  and  ac- 
cepted, the  municipality  cannot  re- 
quire the  lighting  company  to  pay 
compensation  for  the  use  of  the 
ground  occupied  by  its  poles.     Hot, 


LEGISLATIVE    COXTROL,  421 

§392.     City  cannot  fix  rates  without  statutory  authority. 

A  eitj  cannot  fix  the  price  of  gas  supplied  by  a  company 
under  a  statute  merely  authorizing  it  to  provide  by  ordinance 
reasonable  regulations  for  its  supply,  distribution  and  consump- 
tion ;  nor  is  such  a  power  conferred  under  a  general  welfare 
clause,  such  as  is  usually  found  in  municipal  charters  or  stat- 
utes concerning  the  powers  of  municipalities.^^  So  under  a 
statute  providing  merely  that  a  municipality  may  establish 
"  such  regiilations  "  of  the  business  of  a  gas  company  as  it  sees 
fit,  it  is  not  authorized  to  fix  rates  to  be  charged  after  tlie  com- 
pany has  occupied  its  streets  wuth  its  pipes  under  an  ordinance 
granting  it  leave  to  do  so.^''  There  is  no  doubt  of  the  power  of 
the  State  to  delegate  to  a  municipality  the  authority  to  fix  the 
rates.  ^^ 

§393.     Municipality  regulating  rates  after  ordinances  granted. 

After  a  municipality  has  given  a  gas  company  the  right  to  oc- 
cupy its  streets,  and  the  company  has  accepted  the  grant,  there 


Springs,  etc.,  Co.  v.  Hot  Springs, 
70  Ark.  300;  67  S.  W.  Rep.  761. 

The  incorporation  of  a  gas  com- 
].any,  either  by  special  act  or  under 
the  general  laws  of  the  State,  with 
power  to  manufacture  and  sell  gas 
gives  it  the  implied  power  to  charge 
and  collect  reasonable  rates  for  the 
gas  manufactured,  and  such  power 
forms  part  of  its  contract  with  the 
State.  Capital  City  Gaslight  Co. 
V.  Des  Moines.  72  Fed.  Rep.  829. 

But  no  charter  to  make  and  sell 
gas  is  necessary^  the  making  and 
selling  not  being  a  prerogative  of 
the  government.  Jersey  City  Gas 
Co.  V.  Dwight,  29  X.  J.  Eq.  242. 

19  Lewisville  Natural  Gas  Co.  v. 
State.  135  Ind.  49;  34  N.  E.  Rep. 
702;  21  L.  R.  A.  7.34;  43  Am.  and 
Eng.  Corp.  Cas.  483  (overruling 
Rushville  v.  Rushville  Natural  Gas 
Co.,    132   Ind.   575;    28  N.  E.   Rep. 


853;  38  Am.  and  Eng.  Corp.  Cas. 
276;  15  L.  R.  A.  321)  ;  Indianapolis 
V.  Consumers'  Gas  Co.,  140  Ind. 
107;  39  N.  E.  Rep.  433;  27  L.  R.  A. 
514;  48  Am.  and  Eng.  Corp.  Cas. 
151;  49  Am.  St.  Rep.  183;  Nobles- 
ville  V.  Noblesville,  etc.,  Co..  157 
Ind.  162;   60  N.  E.  Rep.  1032. 

-c- //I  re  Pryor,  55  Kan.  724;  41 
Pac.  Rep.  958;  29  L.  R.  A.  398;  49 
Am.  St.  Rep.  280;  12  Am.  R.  and 
Corp.  Rep.  364.  See  Freeport  Water 
Co.  v.  Freeport.  ISO  U.  S.  587; 
affirming  186  111.  179;  .57  N.  E. 
Rep.  862. 

21  Cleveland  Gaslight  and  Coke 
Co.  v.  Cleveland,  71  Fed.  Rep.  610; 
Capitol  City  Light  and  Coke  Co.  v. 
Des  Moines.  72  Fed.  Rep.  820;  Walla 
Walla  V.  Walla  Walla  Water  Co., 
172  U.  S.  1 :  19  S.  Ct.  Rep.  77;  Peo- 
ple V.  Stephens,  62  Cal.  209. 


422  OIL    AND    GAS. 

exists  a  contract  between  them  which  tlie  citv  cannot  change, 
unless  it  has  received  the  power  to  do  so.""  The  incorporation 
of  the  company,  either  by  a  special  act  or  under  the  general 
law,  with  power  to  make  and  sell  gas,  the  power  to  charge  and 
collect  reasonable  rates  for  the  gas  manufacture  is  implied,  and 
forms  a  part  of  the  company's  contract  with  the  State,^^  And 
Avhere  a  statute  was  in  force  authorizing  the  legislature  to 
amend,  change  or  alter  the  charter  of  every  corporation ;  and 
thereafter  the  legislature  granted  a  company  a  charter,  au- 
thorizing it  to  lay  its  pipes  and  sell  gas  in  certain  portions  of  a 
certain  city,  and  exempted  it  from  the  provisions  of  the  statute 
authorizing  amendments  bv  it  to  the  charters  of  companies;  and 
several  years  after  the  charter  was  so  amended  as  to  extend  the 
rights,  privileges  and  franchises  of  the  company  throughout  the 
entire  corporate  limits  of  such  city,  it  was  decided  that  the 
right  to  make  and  sell  gas  carried  with  it  the  right  to  fix  tlie 
price,  and  that  such  right  was  not  subject  to  regulation  either 
by  the  city  or  State.  The  regulation  of  the  price  of  gas  was 
considered  not  an  exercise  of  the  police  power."* 

§394.     Eates  fixed  in  ordinance  granting  franchise. 

The  statement  made  at  the  opening  of  the  immediately  pre- 
ceding section  is,  however,  subject  to  an  exception.  Thus,  if  a 
municipality  in  granting  to  a  gas  company  the  right  to  lay  its 

22  Indianapolis  v.  Consumers'  etc.,    ,  lijjht  Co.   v.   Middletown.   59   N.   Y. 

Co.,    140   Ind.    107;    39   N.   E.   Rep.  228. 

433;    48   Am.   and  Eng.   Corp.    Cas.  23  Capital    City    Gaslight    Co.    v. 

151;    27    L.    R.    A.    514;    Louisville  Des    Moines,     72     Fed.     Rep.     829; 

Gas   Co.   V.   Citizens'   Gas    Co..    115  Cleveland  Gaslight  and  Coke  Co.  v. 

U.  S.  683    (reversing  81  Ky.  263)  ;  Cleveland,    71    Fed.    Rep.    610;    35 

6   Sup.   Ct.  Rep.   265;    10  Am.  and  Ohio  L.  Bull.  155;  Santa  Ana  Water 

Eng.  Corp  Cas.  271;  People  v.  Chi-  Co.   v.    San    Buenaventura,    56   Fed. 

cago   Gas   Trust   Co.,    130   111.   268;  Rep.  339. 

22  N.  E.  Rep.  798 ;  8  L.  R.  A.  497 ;  24  state  v.   Laclede   Gaslight  Co., 

29   Am.   and   Eng.    Corp.   Cas.   257;  102  Mo.  472;  14  S.  W.  Rep.  974;  15 

New  Orleans   Gas  Co.  v.  Louisiana  S.  W.  Rep.  383;   22  Amer.  St.  Rep. 

Gas  Co.,  115  U.  S.  650;  6  Sup.  Ct.  789;    34   Am.   and   Eng.   Corp.   Cas. 

Rep.   252;    10   Am.   and   Eng.   Corp.  49;   People  v.  Kent    (111.),   12  Nat. 

Cas.    689;    Richmond    County   Gas-  Corp.   Rep.   193. 


LEGISLATIVE    COXTROL.  423 

mains  in  its  streets  and  to  supply  consumers  gas  for  private 
use,  fix  the  amount  it  may  charge  them,  and  the  company  ao 
cept  the  grant  or  franchise  thus  given  it,  either  expressly  or  by 
implication  in  occupying  the  streets  pursuant  to  the  ordinance, 
it  cannot  exceed  the  rate  thus  fixed;  and  if  it  attempt  to  charge 
more  than  is  allowed  in  such  ordinance,  any  consumer  within 
the  municipality  whom  it  is  attempted  to  overcharge  may  suc- 
cessfully maintain  an  action  to  enjoin  such  company  overcharg- 
ing him  and  from  removing  his  meter  in  order  to  enforce  its 
unlawful  charge."^  "  Having  accepted  the  franchise  granted 
by  the  ordinance,"  said  the  Supreme  Court  of  Indiana,  "  and 
agreed  to  be  bound  by  the  express  terms  as  to  the  price  of  gas, 
and  having  engaged  in  the  exercise  of  the  privilege  under  the 
grant,  and  so  continuing  to  do  it ;  it  is  now  precluded  from 
successfully  refusing  to  discharge  its  obligations  to  the  inhab- 
itants of  the  town,  who  desire  to  use  its  fuel  upon  the  gi'ound 
that  they  refuse  to  pay  a  price  therefor  in  excess  of  the  maxi- 
mum rate  fixed  by  the  ordinance.  The  town  could  not  by  its 
subsequent  action  impair  or  restrict  the  rights  granted  to,  ac- 
cepted, and  exercised  by  the  appellant.  Xeither  will  the  latter 
be  permitted,  under  the  circumstances,  to  decline  to  comply 
with  the  terms  or  conditions  assumed  by  which  it  is  expressly 
granted."  "®  In  a  subsequent  case  the  same  court  said  :  "  That 
the  city  had  no  power  to  regulate  the  rates  of  its  licensee  makes 
no  difference.  It  had  tlie  power  to  contract.  And  the  power 
to  regulate  the  governmental  function,  and  the  power  to  contract 
for  the  same  end,  are  quite  different  things.  One  requires  the 
consent  only  of  the  one  body,  the  other  the  consent  of  two.  In 
this  instance  the  city  acted  in  the  exercise  of  its  power  to  con- 

25  Westfield  Gas,  etc.,  Co.  v.  Men-  is*  made  the  gas  company  had  given 

denhall,    142    Ind.    538 ;    41    X.    E.  a  bond  to  the  to^^^l  agreeing  to  com- 

Rep.    10.33.     This   case   arose   under  ply  with  the  ordinance  granting  it 

the  same  statute  as  did  Louisville,  the  right  to  occupy  its  streets;  and 

etc.,   Co.  V.   State,   supra.  it  was  a  part  of  such  ordinance  that 

2C  Citing  Indianapolis  v.  Consum-  the   company,  in  consideration  that 

ers'.  etc..  Co..   140  Ind.   107 ;   39  N.  the   town   had    waived   its   right  to 

E.  Rep.  433;    27  L.  R.  A.  514;   48  exact  a  fee  for  the  use  of  its  streets, 

Amer.  and  Eng.  Corp.  Cas.  151.     In  would   adhere   to   the   charges   fixed 

the  case  from  which   the   quotation  in   it   for   private   consumers. 


424:  OIL    AND    GAS. 

tract,  and  it  is  therefore  entitled  to  the  benefits  of  its  bar- 
gain." "^  In  an  ordinance  granting  a  gas  company  the  right 
to  occupy  its  streets,  a  municipality  may  require  that  it 
furnish  gas  free  to  its  public  buildings,  or  even  to  its  places  of 
worship;  and  the  company  will  be  bound  by  its  provisions.  In 
such  an  instance  the  relation  between  the  municipality  and  the 
gas  company  is  one  of  contract."* 

§395.     Rates  fixed  by  city  in  its  consent  to  assignment  of  franchise 
right. 

If  the  right  to  assign  a  franchise  granted  a  gas  company  re- 
quires the  consent  of  such  uuinicipality  granting  it,  tlien  in 
such  consent  tlie  municipality  may  fix  the  rates  tlie  assignee 
may  charge  private  consumers,  without  any  further  or  other 
consideration  ti|an  that  involved  in  consenting  to  the  assign- 
ment."® 

§396.     Gas  company  accepting  provisions  of  subsequent  ordinance. 

A  gas  company  may  bind  itself  by  accepting  the  terms  of  an 
ordinance  fixing  rates  passed  subsequently  to  the  gi'ant  of  its 
franchise ;  and  tlie  right  to  charge  the  rates  fixed  is  a  sufficient 

27  Noblesville  v.  Noblesville,  etc.,  ciipy  such  streets,  bindinfr  it  to  have 
Co.,  157  Ind.  162;  60  N.  E.  Rep.  in  operation  a  well  connected  witli 
1032;  Sewickley  School  District  v.  pipes  within  a  year,  it  was  held 
Ohio  Valley  Gas  Co..  154  Pa.  St.  that  the  latter  company  did  not  ac- 
539;  25  Atl.  Rep.  868;  Newark  quire  any  rights  in  the  streets  until 
Gas  and  Fuel  Co.  v.  Newark,  7  it  had  fulfilled  the  condition,  and 
Ohio  N.  P.  76;  Toledo  v.  N.  W.  that  the  first  company  must  con- 
Ohio  Natural  Gas  Co.,  5  Ohio  C.  C.  tinue  to  furnish  free  gas  until  that 
557;  3  Ohio  Cir.  D.  273.                .  time.     Newark  Gas  and  Fuel  Co.  v. 

28  Sewickley  School  District  v.  Newark,  7  Ohio  N.  P.  76 ;  Toledo 
Ohio  Valley  Gas  Co.,  154  Pa.  St.  v.  N.  W.  Ohio  Natural  Gas  Co..  8 
539;    25   Atl.   Rep.    868.^  Ohio  S.  and  C.  P.  Dec.  277;  6  Ohio 

Where    a    company    was    granted  N.  P.  531. 

the  exclusive  right  to  the  streets  of  29 /«  re  Pryor,   55  Kan.   724;   41 

a    city,    under   a    condition   that   it  Pac.  Rep.  958;  29  L.  R.  A.  398;  49 

was  to  furnish  free  gas  to  the  city  Am.  St.  280.     See  Nobles^Mlle  v.  No- 

so  long  as  it  occupied  the  streets;  blesville,     etc..    Gas    Co..    157    Ind. 

and    the    city    afterwards    granted  162;   60  N.  E.  Rep.  1032. 
another   company   the   right   to   oc- 


LEGISLATIVE    CONTROL.  4:25 

consideration  to  make  its  acceptance  binding.  Thns  where  a 
company  Avas  occupying  the  streets  of  a  toA\Ti  under  an  ordi- 
nance that  allowed  it  to  charge  reasonable  rates  (by  constmc- 
tion),  no  rate  being  specified;  and  no  ordinance  was  enacted 
specifying  what  rates  the  company  could  charge,  but  a  subse- 
quent ordinance  was  passed,  enumerating  and  fixing  rates  for 
almost  all  the  instances  in  which  the  company  had  been  making 
a  cliarge ;  and  the  company  accepted  the  terms  of  such  subse- 
quent ordinance,  it  was  held  that  it  was  bound  by  such  accept- 
ance and  could  charge  only  the  rates  specified,  except  in  those 
instances  where  no  rate  was  fixed,  where  it  could  charge  a  rea- 
sonable rate.'" 

^397.     Prohibition  to  change  for  specified  time. 

In  some  States  are  statutes  authorizing  the  enactment  of  an 
ordinance  granting  the  right  of  a  gas  company  to  supply  gas 
within  a  certain  named  period,  or  not  to  exceed  a  certain  period 
of  time,  and  providing  on  the  acceptance  of  such  an  ordinance 
that  the  acceptiince  and  ordinance  shall  constitute  a  contract 
between  the  municipality  and  the  gas  company.  Where  such  a 
statute  prevails,  and  such  an  ordinance  is  accepted,  the  rates 
fixed  in  it  cannot  be  changed  during  the  period  of  time  fixed 
in  the  ordinance.^^  Under  such  a  statute  the  time  when  the 
jieriod  of  time  shall  begin  to  run  may  be  dated  ahead,  although 
the  period  of  time  from  the  enactment  of  the  ordinance  until 
the  contract  shall  expire  will  exceed  the  length  of  time  for 
which  the  municipality  is  authorized  to  bind  itself  by  the  con- 
tract.^'- 

30  Xoblesville  v.   Xoblesville.   etc.,  si  Logan  Natural  Gas.  etc..  Co.  v. 

Co.,    157    Ind.    162;    60   N.   E.   Rep.  Chillicothe.  65  Ohio  St.   186;  62  N. 

1032.  E.    Rep.    122;    Cincinnati    Gaslight, 

Acquiescence    in    a    reduction    of  etc.,   Co.   v.   Avondale.   43   Ohio   St. 

rates    for    several    years    for    each  257 ;    1   X.   E.   Rep.   527 ;    reversing 

year,  will  not  prevent  contest  for  a  8  Ohio  X.  P.  88;   11  ^^^cly.  L.  Bull. 

reduction    in    future    years,    or    in  216;     13    Wkly.    L.    Bull.    467;    14 

years,   in  which   there  has  been   no  ^Vkly.  L.  Bull.  15;  State  v.  Ironton 

acquiescence.     Los    Angeles    v.    Los  Gas  Co.,  37   Ohio    St.  45. 

Angeles  City  Water  Co.,   177  U.  S.  32  Logan  Natural  Gas,  etc.,  Co.  v. 

558;  20  Sup.  Ct.  Rep.  736;  124  Cal.  Chillicothe.   supra. 

377.  A  contract  for  a  longer  time  than 


426  OIL    AND    GAS. 

§398.     Police  power. —  Rates. 

But  it  must  be  understood  that  in  parting  witli  its  power  to 
fix  and  determine  rates  neither  the  State  nor  the  municipality 
parts  witli  its  police  power  —  the  power  to  protect  the  lives  and 
the  safety  of  its  inhabitants  or  the  safety  of  its  property.  It 
may  be  said  that  is  a  power  that  neither  a  State  and  perhaps  a 
municipality  cannot  alienate.^^  But  the  right  to  exorcise  tlie 
]X)lice  power  is  one  that  must  be  exercised  with  due  regard  to 
the  individual  or  company  affected ;  under  the  guise  of  the 
right  to  exercise  it,  it  cannot  be  so  used  as  to  destroy  vested 
rights;  and  under  it  the  right  to  regulate  a  business,  it  cannot 
be  so  used  as  to  confiscate  a  gas  company's  business  or  property 
without  compensation  and  without  due  course  of  law.^* 

§399.     Mnnicipality  regulating  gas  companies. 

As  a  municipality  is  only  an  agent  of  the  State  in  its  govern- 
ment, the  State  may  delegate  to  it  its  rights  under  the  police 
power  to  control  or  regulate  a  gas  company;  and  no  express  pro- 
vision of  the  constitution  is  necessary  to  enable  it  to  do  so.^** 

the  statute  allows,  or  for  an  in-  Co.,  11.5  U.  S.  G.50;  10  Am.  and 
definite  time,  will  render  the  time  Eng.  Corp.  Cas.  6.39;  6  Sup.  Ct. 
limit  of  the  contract  void;  and  it  Rep.  252;  Louisville  Gas  Co.  v.  Citi- 
cannot  be  urged  successfully  that  zens'  Gas  Co.,  115  U.  S.  G83  (re- 
it  is  a  contract  for  the  full  time  versing  81  Ky.  156;  1  Am.  and  Eng. 
allowed  by  the  statute.  Manhattan  Corp.  Cas.  156)  ;  6  Sup.  Ct.  Rep. 
Trust  Co.  v.  Dayton,  59  Fed.  Rep.  265;  10  Am.  and  Eng.  Corp.  Cas. 
.327;  8  C.  C.  A.  140;  16  U.  S.  App.  671;  Bath  Gaslight  Co.  v.  Claffy, 
588.  There  is  a  seeming  conflict  be-  74  Hun  638;  26  N.  Y.  Supp.  287; 
tween  this  case  and  the  case  of  To-  Mason  v.  Ohio  River  R.  R.  Co.,  52 
ledo  v.  N.  W.  Ohio  Natural  Gas  W.  Va.  41;  41  S.  E.  Rep.  418. 
Co.,  5  Ohio  C.  C.  557.  34  New  Memphis  Gas,  etc.,  Co.  v. 
33  State  V.  Columbus  Gaslight,  Memphis,  72  Fed.  Rep.  952 ;  Bene- 
etc,  Co.,  34  Ohio  St.  572  •  32  Amer.  diet  v.  Columbus  Construction  Co., 
Rep.  390;  Zanesville  v.  Zanesville  49  X.  J.  Eq.  23;  23  Atl.  Rep.  485. 
Gaslight  Co.,  47  Ohio  St.  1;  23  N.  35  Garrison  v.  Chicago.  7  Biss. 
E.  Rep.  555;  29  Am.  and  Eng.  Corp.  480;  Indianapol's  v.  Indianapolis 
Cas.  190;  Jamieson  v.  Indiana  Nat.  Gaslight,  etc.,  Co..  66  Ind.  396;  New 
Gas,  etc.,  Co.,  128  Ind.  555;  28  N.  ^  Orleans  Gaslight  Co.  v.  Hart.  40  La. 
E.  Rep.  76;  12  L.  R.  A.  652;  .34'  Ann.  474:  8  Amer.  St.  Rep.  544;  4 
Amer.  and  Eng.  Corp.  Cas.  1;  New  So.  Rep.  215:  Capital  City  Gaslight 
Orleans  Gas  Co.  v.  Louisiana  Light  Co.    v.    Des    Moines,    72    Fed.    Rep. 


LEGISLATIVE    CONTROL. 


427 


Under  tlie  right  delegated  to.  regulate  gas  companies,  however, 
a  municipality  may  not  violate  any  right  granted  a  company  in 
its  charter,^*'  Nor  can  the  municipality  imder  its  power  to 
regulate  a  gas  company  break  or  impair  a  contract  it  has  with 
the  company  for  municipal  lighting,  or  lighting  its  streets  and 
public  highways.'"  A  mimicipality  has  the  inlierent  and  im- 
plied police  power  to  require  all  gas  companies  operating  within 
its  limits,  to  use  all  reasonable  regulations  to  protect  its  inhab- 
itants, independent  of  any  statute  expressly  authorizing  it  so 
to  do."'^  This  proposition  is  emphasized  when  it  is  borne  in 
mind  that  a  municipality  cannot  by  contract  impair  its  police 
power  over  gas  and  other  like  comp>anies,  to  protect  its  inhab- 
itants in  their  health  and  property  from  their  operations.^" 

§400.     Power    to    change    rates  —  rates    established    must    be 
reasonable. 

Where  a  statute  is  in  force  authorizing  a  municipality  to 
change  or  regulate  rates  for  gas  charged  ])rivate  consumers,  the 
municipality  cannot  fix  the  rate  so  low  that  the  company  cannot 
manufacture  and   supply  gas.     The  rate  must  Ix?  reasonable; 

829;  Northern  Liberties  v.  North- 
ern Liberties  Gas  Co.,  12  Pa.  St. 
318;  Westfield  Gas,  etc.,  Co.  v. 
Mendenhall.  142  Ind.  538;  41  N.  E. 
Rep.  1033;  Zanesville  v.  Louisville 
Gaslight  Co.,  47  Ohio  St.  1;  23  N. 
E.  Rep.  55;  29  Am.  and  Eng.  Corp. 
Cas.   190. 

36  District  of  Columbia  v.  Wash- 
ington Gaslight  Co.,  20  D.  C.  39; 
Pittsburgh's  Appeal.  115  Pa.  St. 
4;  7  Atl.  Rep.  778;  Northern  Liber- 
ties V.  Northern  Liberties  Gas  Co., 
supra. 

■"•'Capital  City  Gaslight  Co.  v. 
Des  Moines,  72  Fed.  Rep.  829;  Levis 
V.  Ne\Yton,  75  Fed.  Rep.  884;  In- 
dianapolis V.  Consumers'  Gas  Trust 
Co.,  140  Ind.  107;  39  N.  E.  Rep. 
433;  48  Am.  and  Eng.  Corp.  Cas. 
151;  49  Am.  St.  Rep.  183;  27  L.  R. 
A.    514;    State  v.   Laclede   Gaslight 


Co.,  102  Mo.  472;  14  S.  W.  Rep. 
974;  15  S.  W.  Rep.  383;  22  Amer. 
St.  Rep.  789;  34  Am.  and  Eng. 
Corp.  Cas.  49 ;  Indianapolis  v.  In- 
dianapolis Gaslight,  etc.,  Co.,  66 
Ind.  396. 

•'8  Northern  Liberties  v.  Northern 
Liberties  Gas  Co.,  12  Pa.  St.  318; 
Rushville  v.  Rushville,  etc.,  Gas  Co., 
1.32  Ind.  575;  28  N.  E.  Rep.  853; 
15  L.  R.  A.  .321  (overruled  on  the 
right  to  regulate  the  price  of  gas.) 

•■^nEast  St.  Louis  v.  East.  St 
Louis  Gas,  etc.,  Co.,  98  111.  415;  38 
Am.  Rep.  97;  Meadville  Fuel  Gas 
Co.'s  Appeal  (Pa.),  4  Atl.  Rep. 
733;  14  Am.  and  Eng.  Corp.  Cas. 
123;  Indianapolis  v.  Consumers' 
Trust  Co..  140  Ind.  107;  39  N.  E. 
Rep.  483;  49  Am.  St.  Rep.  183;  48 
Am.  and  Eng.  Corp.  Cas.  151;  27 
L.  R.  A.  514. 


428 


OIL    A.ND    GAS. 


and  if  not  reasonable,  the  ordinance  changing  tlie  rate  imposes 
no  obligations  upon  the  company.*"  The  granting  of  a  charter 
to  a  company  to  manufacture  an;l  snpjily  gas  creates  an  implied 
contract  witli  the  State  giving  tlie  company  the  right  to  charge 
a  reasonable  rate  for  all  gas  furnished,  which  cannot  be  im- 
paired.*^ Under  such  a  power  a  municipality  cannot  fix  a  rate 
so  low  as  to  work  a  practical  confiscation  of  the  company's  plant ; 
but  due  regard  must  be  had  to  the  right  of  the  company  to  re- 
ceive such  an  income  from  its  business  as  will  pay  operating 
expenses,  legitimate  charges,  and  a  reasonable  profit.*"  The 
reasonableness  of  the  rate  fixed  is  a  matter  for  judicial  in- 
quiry; *^  and  a  court  of  equity  has  the  ])ower  to  set  aside  such 
ordinance  and  direct  the  municipality  to  fix  such  rates  as  the 
statute  authorizes.**  Before  the  courts  can  interfere  it  must 
appear  that  the  ^fites  fixed  are  so  plainly  and  palpably  unrea- 


40  State  V.  Cincinnati,  etc.,  Co., 
18  Ohio  St.  262;  Logan  Natural 
Gas,  etc.,  Co.  v.  Chill icothe,  65  Ohio 
St.  186;   62  N.  E.  Rep.   122. 

41  Cleveland,  etc.,  Co.  v.  Cleve- 
land, 71  Fed.  Rep.  610;  35  Ohio  L. 
Jr.  155;  Toledo  v.  N.  W.  Natural 
Gas  Co.,  8  Ohio  S.  and  C.  P.  Dec. 
277;  Capital  City  Gaslight  Co.  v. 
Des  Moines,  72  Fed.  Rep.  829 ;  New 
Memphis  Gas  Co.  v.  Memphis,  72 
Fed.  Rep.  952;  Los  Angeles  v.  Los 
Angeles,  etc.,  Co.,  177  U.  S.  558;  20 
Sup.  Ct.  Rep.  736;  affirming  88 
Fed.  Rep.  720;  Cincinnati,  etc.,  Ry. 
Co.  V.  Bowling  Green,  57  Ohio  St. 
336;  49  N.  E.  Rep.  121;  People's 
Gaslight  and  Coke  Co.  v.  Chicago, 
114  Fed.  Rep.   384. 

42  New  Memphis  Gas,  etc.,  Co.  v. 
Memphis,  72  Fed.  Rep.  952;  Wad- 
dington  v.  Allegheney  Heating  Co., 
6  Pa.  Co.  Ct.  Rep.  96;  Spring  Val- 
ley, etc.,  Co.  V.  San  Francisco,  82 
Cal.  286;  22  Pac.  Rep.  910.  1046; 
San  Diego,  etc.,  Co.  v.  Jasper,  110 
Fed.  Rep.  702;  Indianapolis  Gas 
Co.    V.    Indianapolis,    82    Fed.    Rep. 


245;  San  Joaquin,  etc..  Co.  v.  Stan- 
islaus County,  113  Fed.  Rep.  930. 

If  a  municipality  lease  its  own 
gas  works  to  a  company,  providing 
in  the  lease  that  its  council  may 
fix  the  rates,  but  not  below  the  then 
existing  rates,  the  proviso  is  a  lim- 
itation upon  its  right  to  regulate 
rates,  and  not  a  mere  granting  back 
by  the  lessee  of  the  right  of  the 
municipality  ir.  its  proprietory  ca- 
pacity only.  Los  Angeles  v.  Los 
Angeles,  etc.,  Co.,  177  U.  S.  558;  20 
Sup.  Ct.  Rep.  736,  affirming  88  Fed. 
Rep.  720. 

43  Capitol  City  Gas  Co.  v.  Des 
Moines.  72  Fed.  Rep.  829;  New 
Memphis  Gas,  etc.,  Co.  v.  Memphis, 
72  Fed.  Rep.  952;  Agua  Pura  Co. 
V.  Las  Vegas.  10  N.  M.  6;  60  Pac. 
Rep.  208 ;  50  L.  R.  A.  224. 

44  Spring  Valley,  etc.,  Co.  v.  San 
Francisco.  82  Cal.  286;  22  Pac.  Rep. 
910,  1086;  Osborne  v.  San  Diego, 
etc.,  Co.,  178  U.  S.  22;  20  Sup.  Ct. 
Rep.  860;  affirming  76  Fed.  Rep. 
319;  People's  Gaslight  and  Coke  Co. 
v.   Hale,   94  111.   App.  406. 


LEGISLATIVE    COXTEOL.  429 

sonable  as  to  make  their  enforcement  equivalent  to  the  taking 
of  private  property  for  public  use  without  proper  compensa- 
tion.*^ In  discussing  this  question  at  great  length  the  Supreme 
Court  of  the  United  States  by  Justice  Harlan  has  said :  "  The 
contention  of  the  appellant  [a  water  company]  in  the  present 
ease  is  that  in  ascertaining  what  are  just  rates  the  court  should 
take  into  consideration  the  cost  of  its  plant ;  the  cost  per  annum 
of  operating  the  plant,  including  interest  paid  on  money  bor- 
rowed and  reasonably  necessary  to  be  used  in  constructing  the 
same ;  the  annual  depreciation  of  the  plant  from  natural  causes 
resulting  from  its  use;  and  a  fair  profit  to  the  company  over 
and  above  such  charges  for  its  services  in  supplying  the  water 
to  consumers,  either  by  way  of  interest  on  the  money  it  has 
expended  for  tlie  public  use,  or  upon  some  other  fair  and  equita- 
ble basis.  Undoubtedly,  all  these  matters  ought  to  be  taken 
into  consideration,  and  such  weight  be  given  them,  when  rates 
are  being  fixed,  as  under  all  the  circumstances  will  be  just  to 
the  company  and  to  the  public.  The  basis  of  calculation  sug- 
gested by  the  appellant  is,  however,  defective  in  not  requiring 
the  real  value  of  tlie  property  and  the  fair  value  in  tliemselves 
of  the  services  rendered  to  be  taken  into  the  consideration. 
What  the  company  is  entitled  to  demand,  in  order  that  it  may 
have  just  compensation,  is  a  fair  return  upon  the  reasonable 
value  of  the  property  at  the  time  it  is  being  used  for  the  public. 
The  property  may  have  cost  more  than  it  ought  to  have  cost, 
and  its  outstanding  bonds  for  money  borrowed  and  which  went 
into  the  plant  may  be  in  excess  of  the  real  value  of  the  property. 
So  that  it  cannot  be  said  that  the  amount  of  such  bonds  should 

*5  San  Diego,   etc.,   Co.  v.  Jasper,  to  not  constitute   a  just  compensa- 

111    Fed.    Rep.    702.     See    People's  lion. 

Gaslight  and  Coke  Co.  v.  Hale,  94  A  reduction  of  the  company's  in- 
Ill.  App.  406,  and  San  Diego,  etc.,  come  need  not  be  shown  to  establish 
Co.  V.  San  Diego,  118  Cal.  556;  50  the  fact  that  the  reduction  of  its 
Pac.  Rep.  633;  38  L.  R.  A.  460;  62  rates  by  ordinance  impairs  the  obli- 
Am.  St.  Rep.  261.  In  this  case  gation  of  a  contract  prohibiting 
three  and  one-third  per  cent  upon  such  reduction.  Los  Angeles,  etc., 
the  actual  cost  of  the  plant  after  Co.  v.  Los  Angeles,  88  Fed.  Rep. 
deducting  current  expenses  was  held  720;   affirmed  177  U.  S.  558:   20  S. 

Ct.  Rep.   736. 


430  OIL    AND    GAS. 

ill  every  ease  control  the  question  of  rates,  although  it  may  be 
an  element  in  the  inquiry  as  to  what  is,  all  the  circumstiinces 
considered,  just  both  to  the  company  and  t(j  the  public."  ""^  ]n 
another  case,  involving  turnpike  rates,  it  -was  said :  ''  Each 
case  must  depend  upon  its  six?cial  facts ;  and  when  a  court, 
without  assuming  itself  to  pi"escribe  rates,  is  required  to  deter- 
inino  whether  the  facts  prescribed  by  the  legislature  for  a  cor- 
poration controlling  a  public  highway  are,  as  an  entirety,  so 
unjust  as  to  destroy  the  value  of  its  property  for  all  the  pur- 
lX)ses  for  which  it  was  acquired,  its  duty  is  to  take  into  consid- 
eration the  interests  both  of  the  jmblic  and  the  owner  of  the 
property,  together  with  all  other  circumstances  that  are  fairly 
to  be  considered  in  determining  whether  the  legislature  has, 
under  the  guise  of  regulating  rates,  exceeded  its  constitutional 
authority,  and  practically  deprived  the  o^^^ler  of  property  with- 
out due  ])rocess  of  law.  .  .  .  The  utmost  tliat  any  corjwra- 
tion  operating  a  public  highway  can  rightfully  demand  at  tlie 
hands  of  the  legislature,  when  exerting  its  general  powers,  is 
that  it  receive  what  under  all  the  circumstances  is  such  com- 
pensation for  the  use  of  its  property  as  will  be  just  both  to  it 
and  to  the  public."  *'  If  the  municipality,  having  the  author- 
ity to  fix  rates,  do  not  do  so,  then  the  gas  company  may  fix  its 
rates  at  such  a  reasonable  figure  as  it  sees  fit,  unless  some  ex-" 
press  provision  of  a  statute  or  an  ordinance  prohibit  its  so 
doing.^^     Where  a  municiaplity  with  authority  to  fix  rates  does 

46  San  Diego  Land  Co.  V.  National  v.  San  Diego,  118  Cal.  556;  50 
City,  174  U.  S.  739;  affirming  74  Pac.  Rep.  633;  38  L.  R.  A.  460;  62 
Fed.  Rep.  79.  It  was  also  held  that  Am.  St.  Rep.  261. 
the  cost  of  outside  ventures  could  47  Covington,  etc.,  Co.  v.  Sand- 
not  be  considered  in  determining  ford,  164  U.  S.  578.  See  Chicago, 
the  rates.  New  Memphis  Gaslight  etc..  Ry.  v.  Minnesota.  134  U.  S. 
and  Coke  Co.  v.  Memphis,  72   Fed.  418. 

Rep.   952.     In   St.  Louis    v.   Arnot,  4s  Lanning    v.    Osborne,    76    Fed. 

94  Mo.   275,   7   S.  W.  Rep^  15,  evi-  Rep.   319;    affirmed   Osborne  v.   San 

aence  of  the  cost  of  the  water  works  Diego,   etc.,   Co.,    178   U.   S.   22;    20 

was  held  to  be  irrelevant  in  fixing  Sup.  Ct.  Rep.  860.     In  this   case  it 

the  rates.     Nor  can  expenses  of  liti-  was  held  that  the  annual   rates  as 

gation  in  contesting  the  validity  of  first  fixed  were  not  made  irrevocalile 

an  ordinance  in  fixing  the  rates  be  by  a  contract  for  the  sale  of  wator 

considered.     San    Diego    Water    Co.  rights  for  a  fixed  sum,  providing,  in 


481 

LEGISLATIVE    CO^^TKOL. 


«o    it  will  be  presumed  that  tlie  rates  are  reasonable;  and  the 
cas  company  has  the  Burden  to  show  that  it  is  not."     li  there 
be  no  restriction  upon  the  company  in  fixing  the  price,  it  is 
authorized  to  fix  it  at  a  reasonable  figure;  ^°  and  the  presump- 
tion is  that  the  price  at  which  it  fixes  it  is  a  reasonable  one/ 
In  a  case  involving  rates,  analogous  to  the  rates  of  a  gas  com- 
panv,  the  Supreme  Court  of  the  United  States  has  used  the  fol- 
lowing language:     ''  The  judiciary  ought  not  tx)  interfere  with 
the  collection  of  rates  established  under  legislative  sanction  un- 
less they  are  so  plainly  and  palpably  unreasonable  as  to  make 
their   enforcement  equivalent   to   the   taking   of   property    for 
public  use  without  such  compensation  as  under  all  the  circum- 
stances is  just  to  the  owner  and  to  the  public;  that  is,  judicial 
interference  should  never  occur  unless  the  case  presents  clearly 
and  beyond  all  doubt,  such  a  flagrant  attack  upon  the  rights  of 
propertv  under  the  guise  of  regulations  as  to  compel  the  court 
to  sav  that  the  rates  prescribed  will  necessarily  have  the  effect 
to  deny  just  compensation  for  private  property  taken  for  the 
public  use."  "     Under  its  power  to  change  the  rates  a  mimici- 

addition,   for   the  payment  of  such  .0  Louisville  Gas  Co.  v.  Dulaney, 

annual    rates   to   "be    fixed   by   the  100  Ky.  405;  38  S.  W .  Rep^-03. 

:r  company  as  allowed  by  law."  ^^  Bellaire  Goblet  Co.  v^  F^ndlay, 

Power  given  to  a  municipal  body  3  Ohio  Cir.  Dec.  20o ;   o  Ohio  C    C. 

to    fix    rates    does    not    make    it    a  418;   Xoblesville  v.  ^oblesvjle  Ga. 

part   of   the   legislative   department  etc.,    Co.,    lo-    Ind.    162;    60   X.    i.- 

of   the  State.     Spring   Valley,   etc.,  Rep.  1032^                               x-.tional 

Co    V    San  Francisco,  82  Cal.  286;  ^^  San  Diego  Land  Co.  ^.  Nation_al 

•.•>"pac    Rep.   910,    1046.     See  Lan-  City,    174   U.   S.   739;    aOirming    -4 

;ing  v.'  Osborne.   82   Fed.  Rep.  575.  Fed.   Rep    79;   citing  Chicago,   e  0., 

40  Capitol    City    Gaslight    Co.    v.  Ry.    v.    ^^  ell  man,      43    L.    S.    339 

Des  Moines,  72  Fed.  Rep.  829.     See  Reagan  v.  Farmers    Loan,  etc.,  Co 

Sate   V    Ironton,   37    Ohio   St.   45;  154  U.  S.  362;   Smyth  v.  Ames,  169 

To    do  V.  N.  W.'ohio  Natural  Gas  U.  S.  p.  524;  and  Henderson  Bndge 

Co.,    3    Ohio    Cir.    Ct.   Dec.    273;    5  Co.   v.   Henderson    City.    1-3   L.   S. 

nViin  Cir    Ct    557 ;  Logansport,  etc.,  o92. 

Ohio  Lir.  Lt.   30i  ,                i  following      analogous 

Gas  Co.  V.  Peru,  89  Fed.  Rep.  18a.  ^^^                ^^     ^. 

Tl.at    the   motives    of    the    common  ^^.^              ^^ ^     S     ,,,.^    Sp^ng 

council  in  fixing  the   price  may  be  ^^^^^^  ^^     ^^,    ^     ^^^  Francisco.  82 

inquired    into,   see   State   v.   Cmcin-  .^                                              ^^^g. 

nati  Gaslight,  etc.,  Co.,  18  Ohio  St.  l^'-^\;^^^^^  ,^    ,,,  V  Bryant.  52 

262.  ^      ° 


432 


OIL    AND    GAS. 


pality  need  not  give  notice  of  its  intention  to  do  so,^'  unless  a 
statute  requires  it ;  and  this  is  especially  true  where  the  com- 
pany must  furnish  data  to  enable  the  nuinicipality  to  determine 


Cal.  132;  Spring  Valley  W.  W.  v. 
Baitlett,  63  Cal.  245;  San  Diego  W. 
W.  Co.  V.  San  Diego,  118  Cal.  55(5; 
50  Pac.  Rep.  633;  38  L.  R.  A.  460; 
Redlands  Domestic  Water  Co.  v. 
Redlands,  120  Cal.  312;  53  Pac. 
Rep.   843. 

A  company  is  not  estopped  to 
contest  the  validity  of  an  ordinance 
fixing  rates  in  violation  of  a  con- 
tract between  the  city  and  the 
grantors  of  the  company,  merely 
because  for  fifteen  years  it  has  col- 
lected the  rates  estal^ished  by  sim- 
ilarly objectionable  ordinances, 
where  it  has  annually  protested 
against  the  city's  conduct.  Los  An- 
geles V.  Los  Angeles,  etc.,  Co.,  177 
U.  S.  558;  20  Sup.  Ct.  Rep.  736; 
affirming  88   Fed.  Rep.   720. 

A  failure  of  a  gas  company  to 
furnish  gas  at  a  rate  specified  in  an 
ordinance,  upon  which  condition  its 
charter  was  granted,  is  not  excused 
by  the  passage  of  a  subsequent  or- 
dinance for  the  repeal  of  the  former 
one.  Such  a  repealing  ordinance  is 
nothing  more  than  a  wrongful  as- 
sertion by  the  town  of  a  right  to 
rescind  its  contract.  Chicago,  etc., 
Co.  V.  Lake,  130  111.  42;  22  N.  E. 
Rep.  616;  affirming  27  111.  App.  346. 

An  ordinance  authorizing  a  com- 
pany to  charge  consumers  during 
the  continuance  of  the  privilege 
granted,  certain  named  rates  or 
"  other  rates  that  may  be  estab- 
lished "  by  the  company  and  ap- 
proved by  the  municipal  authori- 
ties, does  not  exclude  future  regula- 
tion of  the  rates  charged,  in  viola- 
tion of  a  statiite  authorizing  the 
municipality     to     fix     the     charges. 


Creston  W.  W.  Cb.  v.  Creston,  101 
la.  687;  70  X.  W.  Rep.  739. 

In  determining  wliether  or  not 
the  rates  are  reasonable,  bonds  is- 
sued for  patents  which  have  expired, 
or  for  patents  not  used,  cannot  be 
considered.  Nor  can  the  rental  of 
land  owned  by  the  company  but  not 
used  as  a  plant  be  considered  as  a 
proper  expense.  Capital  City  Gas- 
light Co.  v.  Des  ^loines,  72  Fed  Rep. 
829. 

The  cliange  of  rates  so  as  to  im- 
pair the  original  contract  raises  a 
question  giving  the  Federal  courts 
jurisdiction.  Logansport,  etc.,  Gas 
Co.  v.  Peru.  89  Fed.  Rep.  185. 

In  determining  the  rate  the  mu- 
nicipality may  take  into  considera- 
tion the  earnings  in  the  past.  Lo- 
gansport, etc..  Gas  Co.  v.  Peru,  89 
Fed.  Rep.  185. 

The  court  cannot  fix  the  rate;  it 
can  only  determine  whetlier  or  not 
the  rat«s  as  fixed  by  the  municipal- 
ity are  reasonable.  People's  Gas- 
light and  Coke  Co.  v.  Hale,  94  111. 
App.    406. 

The  constitution  and  statute  of 
California  authorizing  Boards  of  Su- 
pervisors to  fix  rates  at  which  water 
shall  be  sold  by  a  corporation  fur- 
nishing water  to  the  public  does  not 
apply  to  a  corporation  organized  to 
furnish  water  to  its  stockholders 
only.  McFadden  v.  Los  Angeles 
County,  74  Cal.  571;  16.  Pac.  Rep. 
397. 

53  Spring  Valley,  etc.,  Co.  v.  San 
Francisco,  82  Cal.  286 ;  22  Pac.  Rep, 
910,  1046;  Budd  v.  New  York,  143 
U.  S.  517;  12  S.  Ct.  Rep.  468. 


LEGISLATIVE    CONTROL. 


433 


what  the  rates  shall  be,  and  it  has  been  called  upon  by  such  city, 
before  tixiiio'  the  rates,  to  fiiniish  such  data.^^ 


54  San  Diego  Land  Co.  v.  National 
City,  174  U.  S.  739;  affirming  74 
Fed.  Rep.  79. 

A  water  company  cannot  exact 
any  sum  of  money  or  other  thing  in 
addition  to  the  legally  established 
rates  as  a  condition  upon  which  it 
will  furnish  water.  Lanning  v.  Os- 
borne. 76   Fed.  Rep.  319. 

The  current  expenses  which  may 
be  considered  in  determining  the 
sufficiency  of  the  income  provided 
by  water  rates  consist  of  the  amount 
of  money  which  is  properly  and  rea- 
sonably expended  each  year  in  the 
collection  and  distribution  of  water. 
San  Diego  Water  Co.  v.  San  Diego, 
118  Cal.  556;  50  Pac.  Rep.  633;  38 
L.   R.  A.  460. 

Where  the  water  is  to  be  fur- 
nished under  a  contract  fixing  the 
rate,  the  reasonableness  of  such 
rates  is  not  a  matter  of  considera- 
tion. Leadville  Water  Co.  v.  Lead- 
ville,  22  Colo.  297;  45  Rac.  Rep. 
362. 

The  court  is  not  limited  to  the 
evidence  heard  by  the  municipal 
board  in  fixing  the  rates  where  the 
hearing  was  conducted  without 
notice  to  the  company  and  without 
any  right  on  its  part  to  intervene 
efi"ectnally.  San  Diego  Water  Co. 
V.   San  Diego,  supra. 

In  Pennsylvania  if  the  rates  yield 
no  more  than  is  required  to  main- 
tain the  plant,  pay  fixed  charges 
and  operating  expenses,  provide  a 
suitable  sinking  fund,  for  the  pay- 
ment of  debts,  and  pay  a  fair  profit 
to  the  owners,  they  are  not  so  un- 
reasonable that  the  courts  will  re- 
duce them.  Under  the  statute  in 
that  State  the  power  of  the  courts 


to  decrease  rates  is  limited  to  a 
reduction  of  the  rates  which  are 
specifically  charged  to  be  excessive, 
and  does  not  include  the  right  to 
form  an  entirely  new  schedule  of 
prices  covering  the  company's  entire 
business.  Brymer  v.  Butler  Water 
Co.,  179  Pa.  St.  331;  27  Pitts.  L.  J. 
(N.  S.)  285;  39  W.  N.  C.  439;  36 
Atl.  Rep.  249 ;  36  L.  R.  A.  260. 

Under  a  power  reserved  to  pre- 
scribe from  time  to  time  rules  and 
regulations  for  the  running  and  op- 
eration of  a  street  railway,  a  city 
cannot  prescribe  the  rate  of  fare. 
Detroit  v.  Detroit,  etc.,  Co.,  184  U. 
S.  368;  22  Sup.  Ct.  Rep.  410. 

As  to  consolidation  of  gas  com- 
panies, by  some  of  which  is  reserved 
the  right  to  fix  the  rates,  and  some 
not,  see  People's  Gaslight  and  Coke 
Co.  v.  Chicago,  114  Fed.  Rep.  384. 
See  also  Rogers  Park  Water  Co.  v. 
Fergus,  178  111.  571;  53  N.  E.  Rep. 
363. 

Power  in  a  city  to  secure  a  re- 
duction in  rates  by  arbitration  does 
not  authorize  the  city  itself  to 
change  the  rate.  Des  ]VIoines  v.  Des 
Moines  W.  W.  Co.,  05  Iowa  348;  64 
X.   W.   Rep.  269. 

The  acceptance  by  a  gas  company 
of  the  provisions  of  a  city  ordinance 
in  which  it  is  reserved  the  right  of 
the  city  council  to  fix  the  price 
charged  for  gas  after  ten  years,  the 
council  at  the  end  of  the  ten-year 
term  may  fix  the  rates,  which  will 
be  conclusive  on  both  the  company 
and  the  public,  and  which  cannot 
De  interfered  with  by  the  courts  in 
the  absence  of  a  showing  of  fraud 
or  bad  faith.  Logansport,  etc.,  Gas 
Co.  V.  Peru,  89  Fed.  Rep.  185. 


434  on-    AND    «AS. 

§401.     Gas  companies  quasi  public  corporations  —  rates  may  be 
changed. 

There  is  a  general  tendency  in  the  courts  to  get  away  from 
the  earlier  decisions;  and  while  not  iii  enomine  overturning 
these  decisions,  yet  to  give  gi'ants  to  gas  and  water  companies  a 
strict  construction,  and  to  hold  that  a  State  or  city  may  revise 
the  company's  rates  unless  the  express  words  of  the  grant  pro- 
hibit it.  The  line  of  reasoning  is  that  such  companies  are 
quasi-corporations,  charged  with  a  public  duty  to  supply  an 
article  necessary  to  municipal  life  —  a  duty  that  tlie  nmnici- 
pality  itself  may  perform  and  which  it  has  delegated  to  another 
to  perform  for  it  —  that  it  enjoys  a  privilege  necessarily  often 
of  a  monopolistic  character,  a  privilege  gi'anted  it  by  the  public, 
and  from  whic^it  derives  a  financial  benefit;  and  that  by  the 
acceptance  of  such  a  grant  or  privilege  it  devotes  its  property 
in  a  measure  to  public  use,  and  is  therefore  more  subject  to 
State  or  municipal  control  or  regulation  than  if  it  were  purely 
a  private  corporation.^^  These  decisions  find  an  illustration 
in  an  Illinois  case  arising  out  of  tlie  annexation  of  the  village 
of  Rogers  Park  by  the  city  of  Chicago.  In  1888  Rogers  Park 
granted  to  a  water  company  the  right  to  lay  water  pipes  in  its 
street  in  order  to  supply  it  and  its  inhabitants  with  water  dur- 
ing the  period  of  thirty  years  at  a  rate  fixed  by  the  ordinance. 
In  1893  the  village  was  annexed  to  the  city  of  Chicago,  and 
four  years  afterAvards  the  Chicago  common  council  provided 
by  ordinance  that  the  rates  in  the  annexed  territory  should  be 

55  state     V.     Cincinnati     Gaslight  Pocatello    Water    Co.    v.     Standley 

and    Coke    Co.,    18    Ohio    St.    262;  (Idaho),  61  Pac.  Rep.  518;   Fellows 

Logan   Natural    Gas   and   Fuel    Co.  v.   Walker,  39  Fed.   Rep.  6.51;   Cin- 

V.  Chillicothe,  65  Ohio  St.   186;   62  cinnati,    etc.,    Ry.     Co.    v.    Bowling 

N.  E.  Rep.  122;   People  v.  Chicago  Green,   57   Ohio   St.   336;    40   X.   E. 

Gas  Trust  Co.,  130  111.  26g^;  22  N.  E.  Rep.     121;     People's    Gaslight    and 

Rep.  798 ;  8  L.  R.  A.  497 ;  29  Amer.  Coke  Co.  v.  Hale,  94  111.  App.  406 ; 

and  Eng.  Corp.  Cas.  257;   Toledo  v.  Waddington   v.   Allegheney  Heating 

N.  W.  Ohio,  etc.,  Co..  8  Ohio  S.  and  Co.,  6  Pa.  Ct.  Rep.  06;  Tacoma  Gas, 

C.  P.  Dec.  277;  6  Ohio  N.  P.  531;  5  etc..   Co.   v.   Tacoma,    14   Wash.288; 

Ohio  Cir.   Ct.  Rep.   557 ;   Cincinnati  .  44  Pac.  Rep.  655 ;  Tampa  v.  Tampa 

Gaslight  and  Coke  Co.  v.  Avondale.  W.  W.  Co.    (Fla.),  34  So.  Rep.  631. 
43  Ohio  St.  257;  1  N.  E.  Rep.  527; 


LEGISLATIVE    COXTROL. 


435 


the  same  as  they  were  in  that  portion  of  Chicago  not  embraced 
in  the  annexed  territory,  which  were  considerably  below  the 
rates  that  had  existed  in  the  new  territory  before  its  annexation. 
The  water  company  contended  that  it  was  not  boimd  by  the  new 
ordinance,  for  the  reason  that  it  violated  the  State  constitution 
in  that  clause  which  forbade  the  enactment  of  a  law  impairing 
the  obligation  of  a  contract;  and  that  until  the  thirty  years  had 
expired  it  was  entitled  to  supply  the  territory  formerly  em- 
braced in  Rogers  Park  at  the  rates  established  in  the  first 
ordinance.  But  the  Supreme  Court  of  that  State  held  that 
its  contention  could  not  be  sustained.  ""  The  village  exercised 
the  power,"  said  the  court,  "  by  incorporating  in  the  ordinance 
a  scale  of  prices  as  being  just  and  reasonable  maximum  rates 
to  be  paid  to  the  company  by  the  consumers.  This  provision  of 
the  ordinance  had  not  the  effect  to  establish  a  contract  between 
the  company  and  the  village  that  the  individual  inhabitants 
of  the  village  should  and  would  pay  such  rates  for  the  period 
of  thirty  years,  or  any  fixed  period  of  time,  but  was  simply  a 
declaration  on  the  part  of  the  village  that  such  rates  were  rea- 
sonable. The  legal  effect  was  to  establish,  prima  facie,  that 
the  corporation,  in  order  to  discharge  the  duty  it  owed  to  tlie 
public,  must  supply  the  commodity  it  had  been  created  to  sup- 
ply at  the  prices  named  in  the  ordinance.  It  was  a  mode  of 
regulating  and  enforcing  the  discharge  of  a  legal  duty,  not  a 
proposition  looking  towards  a  contract.  Xo  contract  was  neces- 
sary to  create  an  obligation  on  the  part  of  the  corporation  to 
supply  water  at  a  reasonable  rate,  for  that  rested  upon  it  as  a 
duty.  Xor  did  the  fixing  of  rates  by  the  alleged  ordinance 
of  the  village  of  Rogers  Park  vest  in  the  company  an  irrevoc- 
able right  to  exact  such  rates  for  the  period  it  had  been  granted 
permission  to  occupy  the  streets,  alleys,  and  public  places  of 
the  village,  or  for  any  fixed  period.  A  rate  or  price  reasonable 
and  just  when  fixed  may,  in  the  future,  become  so  unreasonably 
high  that  the  exaction  of  such  rate  or  price  is  but  an  extortion. 
The  duty  of  the  corporation  does  not,  however,  change,  but 
remains  the  same ;  that  is,  to  exact  only  reasonable  compensa- 
tion.    The  power  of  the  State  to  enforce  that  duty  is  not  ex- 


436  OIL    AND    GAS. 

liausted  by  its  exercise  in  the  first  or  any  subsequent  instance, 
but  is  continuous,  and  may  be  asserted  from  time  to  time, 
whenever  necessary  to  prevent  extortion  by  the  agency  created 
by  the  State  to  serve  the  public.  Whenever  the  evil  of  extor- 
tion exists,  the  power  to  eradicate  it  may  be  successfully  invoked. 
In  the  exercise  of  that  ]>ower  by  the  State,  or  by  a  numicipality 
exercising  the  power  by  delegation  from  the  State,  there  is  no 
admixture  whatever  of  any  contractual  element;  nor  does  the 
corjwration  against  whom  the  jwwer  is  exercised  obtain  any 
vested  proi)erty  or  property  right  in  the  sale  of  rates  deemed 
at  any  particular  time  to  be  reasonable  maximum  ]>rices  for  the 
article  to  be  su])])licd  by  the  corporation.  The  annexation  of 
the  village  of  Rogers  Park  to  the  city  of  Chicago  operated  to 
clothe  the  city  council  of  the  city  with  ample  authority  to 
determine,  prinm  facie,  whether  the  rates  demanded  by  the  com- 
pany for  water  applied  to  the  inhabitants  of  that  part  of  the 
city  which  was  formerly  within  the  limits  of  the  village  were 
reasonable,  and  to  enact  an  ordinance  reducing  such  rates  if 
deemed  by  it  to  be  extortionate."  ^° 

§402.     Same  continued.  —  Rates  may  be  changed. 

The  question  receives  furtJier  exposition  in  another  and  ear- 
lier Illinois  ease.  A  water  company  was  organized  in  Novem- 
ber, 1882,  to  supply  the  city  of  Danville  with  water,  pursuant 
to  an  Act  of  the  legislature  providing  that  "  the  General  As- 
sembly shall  at  all  times  have  power  to  prescril>e  such  regailations 
and  pTovisions  as  it  may  deem  advisable,  which  regulations 
and  provisions  shall  be  binding  on  any  and  all  corporations 
formed  under  the  provisions  of  "  the  Act.^^  By  the  provisions 
of  an  ordinance  of  the  city  of  Danville  under  which  the  com- 
pany received  its  right  to  occupy  the  streets  of  that  city  and 

5G  Rogers  Park  Water  Qlo.  v.  Fer-  was  not   such   a  contract   as   bound 

pus,    178    111.    571;    53   N.    E.    Rep.  him  to  continue  to  pay  the  rates  of 

363;  People's  Gaslight  and  Coke  Co.  the  company  permitted  by  the  ordi- 

V.  Hale.  94  111.  App.  406.  nance    when     the    application     was 

It  was  also  held  in  this  case  that  made   before  the  reduction  was  at- 

the  signing  of  an  application  by  the  tempted. 

consumer   for  water,    subject  to  the  s"  1    Starr    and    Curt.    Ann.    Stat, 

regulations  thereafter  to  be  adopted,  (2d  ed.),  p.  1006,  Sec.  9. 


LEGISLATIVE    CONTKOL. 


437 


supply  its  inliabitants  witli  water  the  rates  for  city  hydrants 
were  tixed  for  the  teriu  of  thirty  years;  and  the  company  fur- 
nished to  the  city  water  ai  those  rates  for  years  until  1895, 
when  the  common  council  adopted  a  new  ordinance,  lowering  the 
rates  for  hydrants  from  $62.50  per  annum  for  the  first  100, 
and  all  others  $50,  to  $50  per  annum  for  the  first  140,  and  $10 
for  all  others ;  which  ordinance  the  company  refused  to  accept. 
The  city  was  authorized  by  statute  to  enter  into  a  contract, 
at  the  time  it  did  so,  "  for  a  supply  of  water  for  public  use, 
for  a  period  not  exceeding  thirty  years."  ^'     This  Act  was  silent 
as  to  the  rates  to  be  charged  and  as  to  the  mode  of  fixing  them ; 
but  a  statute  one  day  later  in  date  emi^owercd  a  city  "  to  au- 
thorize any  person  or  private  corporation  to  construct  and  main- 
tain water  works  "  at  such  rates  as  might  be  fixed  by  ordinance 
for  a  jx^riod  not  exceeding  thirty  years.^"     In  1891  an  Act  of 
the  legislature  was   passed   authorizing  a  city  in  which  was 
a  eoriX)ration  supplying  it  and  its  inhabitants  with  water  "  to 
prescribe  by  ordinance  maximum   rates  and   cliarges   for   the 
supply  of  water  furnished  by  such    .     .     .    corporation  to  such 
citv     .     .     .     and    the    inhabitants    thereof,    such    rates    and 
charges  to  be  just   and  reasonable  " ;   and   if  the   rates  were 
unjust  and  unreasonable,  the  Circuit  Court  was  empowered  to 
review  and  determine  them.     The  company  refused  to  accept 
the  provisions  of  the  ordinance  of  1895,  claiming  that  it  was 
a  violation  of  its  contract  with  the  city;  and  brought  suit  to 
recover  a  year's  rental  under  the  old  ordinance.     The   court 
held  the  new  ordinance  was  valid ;  and  that  the  company  could 
only  recover  according  to  the  rates  fixed  by  it.     The  court  said 
that  the  "  authority  to  contract  for  a  supply  of  water  for  public 
use  for  a  period  not  exceeding  thirty  years  "  did  "  not  neces- 
sarily provide  that  the  price  of  the  supply  should  be  fixed  for 
the  entire  period.     The  supply  could  be  made  for  the  entire 
term,  but  the  price  is  to  be  determined  from  time  to  time,  and 
the  rates  to  l)e  settled  by  the  rules  of  the  common  law."  ''"^     The 

58  1  Starr  and  Curt.  Ann.  Stat.  p.  eo  Citing  Carlyle  v.   Carlyle,  etc., 
545.                                                                   Co.,  52  111.  App.  577. 

59  1  Starr  and  Curt.  Ann.  Stat.  p. 
508. 


438  OIL    AND    GAS. 

court  admitted  that  the  statute  under  which  the  company  was 
formed  was  silent  on  the  question  of  rates,  but  said :  ''  Where 
the  charter  of  a  gas  or  water  company  in  a  city  does  not  ex- 
pressly confer  on  the  company  the  right  to  fix  its  owm  prices, 
such  silence  cannot  be  construed  into  a  grant  of  the  franchise  to 
fix  its  own  rates.  So,  here,  the  silence  of  the  Act  as  to  the 
rates  to  be  charged  does  not  necessarily  confer  upcni  the  munici- 
pality the  power  to  fix  one  established  rate  for  the  whole  ^x^riod 
during  which  the  contract  is  to  run.  If,  however,  it  be  doubtful 
whether  the  language  of  the  Act  does  or  does  not  confer  the 
power  upon  cities  to  contract  for  a  supply  of  water  at  a  fixed 
rate  for  the  whole  period  of  thirty  years,  such  doubt  must  be 
resolved  in  favor  of  the  public."  The  court  then  proceeds  to 
say :  "  The  clause  '  for  a  period  not  exceeding  thirty  years  ' 
qualifies  the  words  '  construct  and  maintain  the  same,'  but  does 
not  qualify  tlie  words  '  at  such  rates  as  may  be  fixed  by  ordi- 
nance.' In  other  words,  the  council  may  authorize  a  private 
corporation  to  construct  and  maintain  water  works  for  a  period 
not  exceeding  thirty  years,  and  they  may  authorize  a  private 
corporation  to  construct  and  maintain  the  water  works  at  such 
rates  as  may  from  time  to  time  be  fixed  by  ordinance."  ^^  An- 
other case  of  the  same  character  was  that  of  the  city  of  Freeport, 
in  which  a  like  decision  was  made.*'^  Appeals  from  these  deci- 
cions  were  taken  to  the  Supreme  Court  of  the  United  States, 
and  the  cases  affirmed ;  but  the  decisions  were  put  upon  grounds 
slightly  different  from  that  of  the  Illinois  court,  as  will  appear 
in  the  following  extract  from  tlie  opinion  in  the  Freeport  case : 
"  Our  conclusion  is  that  the  powers  conferred  by  the  statutes  of 
1872  can,  without  straining,  be  construed  as  distributive.  The 
city  council  was   authorized  to   contract  with  any   person  or 

61  Danville  v.  Danville  Water  Co.,  short    opinion    is    rendered    is    af- 

,  178    111.   299;    53   N.   E.   Rep.    118;  firmed   on    appeal    to   the    Supreme 

180  111.  235;  54  N.  E.  Rep.'*224.     In  862.     See    also    Tampa    v.     Tampa 

another  case  between  the  same  par-  W.  W.  Co.,  34  So.  Rep.  631. 

ties    (186   111.    326;    57   N.   E.   Rep.  02  Preeport    Water    Co.    v.    Free- 

1129),    the    court    renders    a    short  port,    186   111.    179;    57   N.   E.   Rep. 

opinion,    referring?    to    the    opinion  862.     See  also  Tampa  v.  Tampa  W. 

from   which  the  above  quotation   is  W.  Co.,  34  So.  Rep.  631. 
made;    and  this   case   in  which   the 


LEGISLATIVE    CONTEOL.  439 

corporation  to  construct  and  maintain  water  works  at  such  rates 
as  may  he  fixed  by  ordinance,  and  for  a  period  not  exceeding 
thirty  years.  The  words  '  fixed  by  ordinance/  may  be  con- 
strued to  mean  by  ordinance  once  for  all  to  endure  during  the 
whole  period  of  thirty  years ;  or  by  ordinance  from  time  to 
time  as  might  be  deemed  necessary.  Of  the  two  constructions 
that  must  be  adopted,  which  is  most  favorable  to  the  public, 
not  that  one  which  would  so  tie  the  hands  of  the  council  that 
the  rates  could  not  be  adjusted  as  both  parties  might  require 
at  a  particular  time."  '^^  Where  a  gas  company,  organized 
before  any  statute  or  constitutional  provision,  authorized  a 
regulation  of  it  by  the  State  or  a  municipality,  was  authorized 
to  charge  not  to  exceed  three  dollars  per  thousand  feet,  after 
such  a  statute  was  enacted,  consolidated,  pursuant  to  a  statute 
authorizing  it  to  do  so,  subject  to  the  conditions  resting  upon 
each  of  them,  none  of  them  being  in  fact  extinguished,  it  was 
held  that  it  subjected  itself  to  regulations,  with  respect  to  its 
rates,  by  the  municipality,  and  could  only  charge  the  rates  al- 
lowed by  the  companies  it  had  absorbed."* 

§403.     Same  continued  —  rates  may  be  changed. 

The  Supreme  Court  of  Ohio  holds  that  gas  companies,  because 
of  their  ]Deculiar  relation  to  the  public,  are  such  corporations 
as  their  rates  to  private  consumers  may  be  changed  by  the  legis- 
lature or  by  a  municipality  in  pursuance  of  a  statute  authorizing 
it  to  make  a  diange.     In  1849   the  legislature  chartered  the 

63  Freeport  Water  Co.  v.  Free-  "  consistent  with  and  subject  to " 
port  City,  180  U.  S.  587;  21  S.  Ct.  its  provisions  and  the  laws  of  the 
493;  affirming  186  111.  179;  57  N.  State.  A  general  law  authorized 
E.  Rep.  862;  Danville  Water  Co.  v.  a  municipality  of  the  population 
Danville,  180  U.  S.  610;  21  St.  Ct.  specified  to  regulate  and  control  the 
505;  affirming  186  111.  326;  57  X.  E.  "  use"  of  gas.  but  contained  no  pro- 
Rop.  1 129 ;  Rogers  Park  Water  Co.  vision  as  to  the  price.  It  was  held 
v.  Fergus,   180  U.  S.  624.  that  the  city  could  not  adopt  a  char- 

64  People's  Gaslight  and  Coke  Co.  ter  empowering  it  to  fix  tlie  price 
V.  Chicago,   114  Fed.  Rep.  384.  of  that  commodity  to  be  furnished 

The  constitution  of  the   State  of  its   inhabitants.     Tacoma   Gas,   etc.. 

Washington  authorizes  a  municipal-  Co.   v.   Tacoma,    14   Wash.    288;    44 

ity  of  a  specified  population  to  form  Pac.  Rep.  655. 
a   charter   for   its   own   {government 


440  OIL    AND    GAS. 

Zanesville  Gaslight  Company ;  and  in  the  same  year  the  city  of 
Zanesville  authorized  this  company  to  lay  its  pipes  in  the  city's 
streets  and  alleys,  providing  that  so  long  as  it  enjoyed  the  privi- 
lege granted  it  should  supply  the  "  town  council  "  with  gas  at 
a  price  not  to  exceed  two  dollars  and  fifty  cents  a  thousaml 
cubic  feet.  At  that  time  the  city  had  no  legislative  authority 
to  regulate  the  price  of  gas.  Subsequently  the  legislature 
enacted  a  statute  authorizing  municipalities  to  fix  the  price  at 
which  gas  should  be  sold  by  gas  companies ;  and  the  city  of 
Zanesville  thereafter  in  1884  fixed  the  price  to  itself  and  its 
citizens  at  one  dollar  and  twenty-five  cents  per  thousand  cubic 
feet.  The  gas  company  never  accepted  the  provisions  of  this 
last  statute  nor  of  this  last  ordinance.  But  the  Supreme  Court 
held  that  it  could  not  charge  more  than  the  price  fixed  by  the  last 
ordinance,  invokilig  the  doctrine  of  Munn  v.  Illinois,"^  and 
holding  that  it  was  such  a  quasi-public  corporation,  enjoying 
special  privileges  of  such  a  public  character  that  its  rates  were 
subject  to  legislative  control.''^'  A  case  in  tlie  Federal  Circuit 
Court  for  the  Southern  District  of  Ohio  illustrates  how  far  the 
courts  are  inclined  to  go  to  enable  the  State  or  a  municipality 
to  regulate  the  rates  of  gas  or  water.  On  March  18,  1887,  the 
city  of  Dayton,  pursuant  to  statutes  autliorizing  it  to  do  so, 
adopted  an  ordinance  giving  a  natural  gas  company  the  right  to 
lay  its  mains  in  the  streets  and  supply  the  inhabitants  of  the 
city  with  gas,  giving  it  eighteen  months  in  which  to  introduce 
the  gas,  and  providing  that  if  this  was  not  done  by  January  1, 
1889,  the  city  might,  by  resolution,  declare  a  forfeiture  of  the 
company's  franchise.  The  company  accepted  the  provisions 
of  the  ordinance,  began  to  lay  its  pipes  in  the  streets,  but  failed 
to  complete  the  enterprise  or  to  supply  gas  by  January  1,  1889. 

C5  94   U.   S.    113.  Ct.  557;   3  Ohio  Dec.  273;  Toledo  v. 

6  6  Zanesville      Gaslight    ^o.      v.  Northwestern,    etc.,    Co.,    8   Ohio    S. 

Zanesville,  47  Ohio  St.  35;  23  N.  E.  and   C.  P.   Dec.   277;    6  Ohio  N.   P. 

Rep.   60;   23  Wkly.  L.  Bull.  70;   29  531.     See   Spring  Valley  W.   W.   v. 

Am.  and  Eng.  Corp.  Cas.  190;  State  Schottler.  110  U.  S.  347;  Agua  Pura 

V.   Cleveland,  etc.,  Co.,   3   Ohio  Cir.  Co.   v.  Las  Vegas,   10  N.   M.  6;    60 

Ct.    251:     State    v.    Columbus,    etc.,  Pac.  Rep.  208;  50  L.  R.  A.  224.     See 

Co..    34    Ohio    St.    572;    Toledo    v.  also  Tampa  v.  Tampa  W.  W.  Co.,  34 

Northwestern,  etc.,  Co.,  5  Ohio  Cir.  So.  Rep.  631. 


LEGISLATIVE    CONTEOL.  441 

On  February  2,  1889,  the  city  declared  all  its  rights  forfeitured. 
Meantime,  on  December  23,  1887,  it  passed  an  ordinance  fixing 
the  maximum  prices  the  company  should  have  a  right  to  charge 
for  gas  furnished  for  fuel  purposes  by  mixers  for  the  next 
ensuing  five  years,  which  ordinance  the  company  accepted. 
On  March  28,  1889,  the  name  of  the  company  having  been 
changed,  the  city  passed  an  ordinance  granting  to  it  the  right 
to-  occupy  its  streets,  for  the  term  of  twenty  years,  with  the  ob- 
ject of  furnishing  gas  "  for  heating,  fuel,  and  power  purposes 
only  "  ;  and  in  it  provided  that  any  consumer  should  have  the 
right  to  require  gas  to  be  furnished  by  meter  measurement,  at  a 
rate  not  to  exceed  a  certain  figure,  and  not  by  the  former 
schedule  rates,  the  company  to  furnish  the  meter  at  a  rental  of 
three  dollars  a  year,  payable  in  advance.  The  meter  rate  was 
considerably  lower  than  the  former  rate.  A  subsequent  section 
provided  that  "  the  contract  heretofore  made  between  the  city 
and  this  company,  as  to  schedule  of  prices,  shall  be  in  full  force, 
except  as  herein  altered,  and  for  the  unexpired  time  of  said 
original  contract."  The  contract  under  the  ordinance  of  De- 
cember 23,  1887,  expired  January  10,  1893.  Shortly  after  the 
company  went  into  the  hands  of  a  receiver,  who  claimed  that 
after  January  10,  1893,  there  was  no  rate  fixed  by  the  council 
that  was  operative  and  in  force ;  and  proceeded  to  carry  into 
effect  a  resolution  of  the  gas  company,  adopted  in  anticipation 
of  the  termination  of  the  contract  created  by  the  ordinance  of 
December  23,  1887,  as  modified  by  that  of  March  28,  1889, 
and  advanced  the  rates  to  nearly  double  what  they  had  been  by 
the  meter  measurements.  Before  any  of  these  ordinances  were 
adopted  a  statute  had  been  enacted  authorizing  city  councils  "  to 
regulate,  from,  time  to  time,  tlie  price  "  which  natural  gas  com- 
panies could  charge  for  natural  gas  "  for  lighting  or  fuel  pur- 
poses," and  providing  that  the  companies  could  not  charge 
more  than  the  price  then  fixed.  The  statute  also  provided  that 
if  the  council  fixed  "  the  maximum  price  at  which  it  requires 
any  company  to  furnish  gas  to  the  citizens,  or  public  buildings, 
or  for  the  purpose  of  lighting  the  streets  .  .  .  for  a  period 
not  exceeding  ten  years,  and  the  company  assents  thereto  by 


442  OIL    AND    GAS. 

written  acceptance  ...  it  shall  not  be  lawful  for  the  coun- 
cil to  require  such  company  to  furnish  gas  at  a  less  price  during 
tlie  period  of  time  agreed  upon,  not  exceeding  ten  years  as 
aforesaid."  The  court  held  that  after  the  five  years'  rate  ex- 
pired, as  provided  for  by  the  ordinance  of  December  23,  1887, 
the  rates  provided  by  tlie  ordinance  of  March  28,  1889,  were 
in  force.  The  court  adopted  the  reasoning  of  the  Supreme 
Court  of  the  State  of  Ohio,  and  followed  the  construction  it  had 
given  to  the  statute  cited.*^^  On  appeal  the  case  was  affirmed, 
the  court  holding  that  the  provisions  for  a  maximum  rate  was 
not  a  contract  for  any  period,  but  an  exercise  of  the  }X)wer  to 
regulate,  and  a  limitation  on  the  license  granted,  and  continued 
in  force  after  the  expiration  of  the  original  contract,  and  until 
repealed.  The  court  also  held  that  when  a  municipality  is 
authorized  to  enter  into  a  contract  for  a  period  not  to  exceed 
ten  years,  its  contract  for  twenty  years,  or  for  an  indefinite 
time,  is  entirely  void,  and  that  it  cannot  be  sustained  as  a  con- 
tract for  ten  years. *^^ 

§404.     Municipality  delegating  power  to  change  rates. 

If  a  statute  (or  an  ordinance)  empowers  a  municipality  to 
fix  and  regulate  rates,  the  governing  body  of  such  municipality, 
or  the  body  especially  authorized  to  fix  or  regulate  the  rate  must 
do  it;  and  the  power  to  fix  or  regulate  it  cannot  be  delegated 
to  any  other  person  or  body  than  the  one  named  in  the  statute  or 

CT  Manhattan    Trust    Co.    v.    Day-  vision    of    which    a   statute   may    be 

ton  Natural   Gas  Co.,  55  Fed.  Rep.  enacted     to    regulate    corporations. 

181.  Tlie    syllabus    would    lead    one    to 

68  Manhattan  Trust  Co.  v.  Da^-  think  that  the  court  rested  its  do- 
ton,  59  Fed.  Rep.  327 ;  8  C.  C.  A.  cision  upon  the  unconstitutionality 
140;    16  U.  S.  App.  588.  of  this  statute;  but  the  decision  is 

The    case    of   the   Cleveland    Gas-  based  upon  the  fact  that  the  bill  for 

light    and    Coke    Co.    v.    Cleveland,  an    injunction    charged,    which    the 

71    Fed.    Rep.    610,    .35    Ohio  ,L.    J.  demurrer   admitted,    that   the   price 

155,  is  not  so  much  at  variance  with  fixed    by    the    municipality    was    so 

the    Ohio    cases    as    would    at    first  low    that    gas    could    not    bo    manu- 

soom.     The    gas    com])any's    charter  facturcd  at   the  figure  named.     The 

dated   from   1846,   and  it  was   occu-  court   fsaid   the  rates   fixed  must  be 

pying  the  streets  when  the  constitu-  reasonable, 
tion  of  1850  was  adopted,  by  a  pro- 


LEGISLATIVE    COIs^TROL.  443 

ordinance.  Xor  can  a  contract  with  a  gas  company  be  made 
that  will  authorize  some  body  other  than  the  one  named  in  the 
statute  to  regulate  the  price.*'''  But  where  the  constitution  of 
a  State  provided  that  private  corporations  might  he  formed 
under  general  laws,  which  laws  might  be  altered  or  repealed 
from  time  to  time ;  and  pursuant  to  its  provisions  a  company 
was  chartered,  providing  that  the  rates  might  be  fixed  by  a 
board  composed  of  two  members  appointed  by  the  municipality, 
two  appointed  by  the  company  and  the  fifth  by  the  four;  and 
thereafter  a  new  constitution  was  adopted  providing  that  the 
rates  should  be  fixed  by  the  city  and  county  board  of  super- 
visors, it  was  held  that  the  charter  was  subject  to  changes  ac- 
cording to  the  rights  reserved  in  the  first  constitution,  and  it 
was  not  impaired  by  the  last  constitution."**  Yet  where  a  statute 
provided  "  that  the  board  of  gas  trustees  may  prescribe  by  by- 
laws the  price  of  gas  and  coke,  under  such  rules  and  regulations 
as  by  ordinance  the  council  may  prescribe,"  it  was  held  that  the 
action  of  the  trustees  in  raising  the  price  of  gas  without  an  ordi- 
nance authorizing  them  so  to  do  was  void.'^^ 

§405.     Annexing  territory  after  contract  made. 

If  a  city  has  a  contract  with  a  gas  company  to  supply  gas  at 
a  certain  fixed  price,  and  thereafter  extends  its  limits,  the  rate 
so  fixed  will  be  appliable  to  the  territory  annexed.'^"  Thus 
where  a  gas  company,  pursuant  to  statutory  authority,  extend- 
ing its  gas  mains  into  a  village  where  it  is  vested  with  the  right 
to  lay  its  mains,  and  uses  such  mains  to  convey  to  such  village 
gas  manufactured  by  it,  and  uses  its  manufactory  and  mains  as 


69  Cincinnati    Gaslight    and    Coke  ley    W.    W.    v.    San    Francisco,    Gl 

Co.   V.   Avondale.   43   Ohio   St.   257;  Cal.  3. 

1   X.  E.   Rep.    527.     See  Schwede  v.  "i  Foster  v.   Findlay,   5  Ohio   Cir. 

Heinrich.  etc.,  Co.,  29  Wash.  — ;  69  Ct.  455;  3  Ohio  Cir.  Dec.  224. 

Pac.  Rep.  362.  72  See  People  v.  Deehan,  153  N.  Y. 

-0  Sprinp:  Valley  W.  W.  v.  Schott-  528;   47  N.   E.  Rep.   787;   reversing 

ler,  110  U.  S.  347;   4  Sup.  Ct.  Rep.  11  X.  Y.   App.  Div.   175;   42  X.  Y. 

48;    Spring  Valley  W.   W.   v.  Bart-  Supp.   1071. 
lett,   16  Fed.  Rep.  615;   Spring  Val- 


444  OIL    AND    GAS, 

one  plant,  it  was  regarded  as  established  in  the  village,  within 
the  meaning  of  a  statute  giving  a  niunicipality  power  to  regulate 
the  price  of  gas ;  and  such  extension  of  the  mains  was  regarded 
as  the  extension  of  the  gas  works  for  supplying  the  village  with 
gas,  within  the  meaning  of  a  statute  authorizing  the  council 
"'  to  agree,  by  ordinance,  with  any  person  or  persons,  for  the 
.  .  .  extension  of  gas  works  .  .  .  for  supplying  the 
corporation  or  its  inhabitants  with  gas."  ^^ 

§406.     Police  power  regulations. 

As  an  instance  of  tli^  exercise  of  the  police  power  by  a  munici- 
pality, is  the  removal  of  a  lam.i>post  where  the  public  conven- 
ience requires  it,  and  no  contractual  relation  with  the  gas  com- 
pany prohibits  it.  In  such  an  instance  the  power  to  remove  it 
may  be  delegated.'*  So  an  ordinance  adopted  subsequent  to  the 
granting  of  a  franchise  may  provide  for  an  inspection  of 
meters.^^  So  in  the  case  of  a  water  company  (and  no  doubt  the 
same  is  true  of  a  gas  company)  a  municipality  may  take  such 
measures  as  may  be  necessary  to  secure  pure  water,  "  the  pay 
of  its  [the  company's]  just  contributions  to  the  public  burdens, 
and  tlie  observance  of  its  own  ordinances  respecting  the  manner 
in  which  pipes  and  mains  of  the  company  should  be  laid  through 
the  streets."  ''' 

73  Cincinnati  Gaslight  and  Coke  215;  8  Am.  St.  Rep.  844;  20  Am. 
Co.  V.  Avondale.  43  Ohio  St.  257;  1       and  Eng.  Corp.  Cas.  258. 

i>f.    E.    Rep.    527.     See   also    Rogers  75  Cincinnati,  etc.,  Co.  v.  State,  18 

Park  Water  Co.  v.  Fergus.  180  U.  S.  Ohio  St.  237. 

624;    21   S.   Ct.   Rep.  490,   affirming  tg  ^alla  ^Yalla  Water  Co.  v.  Wal- 

178    111.    571;    53    N.    E.    Rep.    563,  la  Walla,  172  U.  S.  1;  New  York  v. 

and  People's  Gaslight  and  Coke  Co.  Squire,  145  U.  S.  175;   St.  Louis  v. 

V.  Chicago,  114  Fed.  Rep.  384.  Western  U.  Tel.  Co.,   148  U.  S.  92; 

74  New  Orleans  Gaslight  Co.  v.  Missouri,  etc..  Co.  v.  Murphy,  170 
Hart,  40  La.  Ann.  474;   4  So.  Rep.  U.  S.  78,  affirming   130  Mo.  10;   31 

S.   W.   Rep.   594. 


CHAPTER  XXI. 

CONTRACTS  FOR  MUNICIPAL   LIGHTING. 

§407.  Power  to  make  contract. 

§408.  Constitutional  or  statutory  limitations  on  indebtedness. 

§409.  Length  of  term  of  contract. 

§410.  Extending  term  of  contract. 

§411.  Bids  for  lighting. 

§412.  How  contract  executed. 

§413.  Liability  of  city  for  breach  of  contract. —  Damages. 

§414.  Assignment  of  lighting  contract. 

§415.  Rescission  of  contract. —  Breach. 

§416.  Discontinuing  use  of  gaS. 

§417.  Changing  contract. 

§418.  Gas  furnished  not  covered  by  contract. —  No  contract. 

§419.  Municipality  extending  limits  after  making  contract. 

§420.  Municipality  receiving  light  under  a  void  contract. 

§421.  Contracts  void  for  uncertainty. 

§422.  Moonlight  schedule. 

§423.  The  price  to  be  paid. 

§424.  Free  light. 

§425.  Exemption  from  taxation  in  fixing  price  of  gas. 

§426.  Cost  of  light,  out  of  what  fund  paid. 

§427.  Appropriation  for  light,  when  necessai-y  to  validity  of  contract. 

§428.  Exhaustion  of  appropriation  as  a  defense. 

§429.  Tax  to  pay  for  gas  or  to  support  gas  plant. 

§430.  Assessing  cost  of  public  lighting  upon  abutting  property. —  Cost  of 

municipal  plant. 

§431.  Mandamus  to  compel  auditing  of  payment  of  bills. 

§432.  Action  to  recover  for  gas  supplied. 

§433.  Interest. 

§434.  Lamps  — ■  Posts. 

§435.  Ignited  States  revenue  tax. 

§436.  \A'aiver  as  to  quality  of  gas  or  light. 

§437.  Extending  mains,  failure  to  pay  for  light. 

§438.  Receiver  bound  by  contract. 

§439.  Municipal  officer  interested  in  contract. 

§407.     Power  to  make  contract. 

There  has  never  been  any  denial  of  the  power  of  a  munici- 
pality to  make  a  contract   for  lighting  its  streets  and  pnblic 

445 


440  OIL    AlSlU    GAS. 

buildings  worthy  of  regard.  Whether  it  is  its  duty  or  not  to 
light  its  streets  and  public  places,  the  right  to  make  such  con- 
tracts is  unquestioi\ed,  whether  a  statute  expressly  authorizes 
it  or  not.  "  A  municipal  corporation,"  said  the  Supreme  Court 
of  Indiana,  "  not  having  either  body  or  limbs,  feet  or  hands, 
but  being  merely  a  le<^al  entity  cannot  execute  its  own  acts,  nor 
administer  its  own  affairs.  To  do  this  it  must  employ  persons^ 
other  corporations,  or  agencies  of  some  kind,  and  to  employ  them 
and  agree  to  pay  them  ^s  to  make  a  contract;  and  if  it  could 
not  make  such  contracts,  and  was  not  bound  thereby,  it  could  not 
carry  on  the  purposes  or  attain  the  objects  for  which  it  was 
established.  Ita  ordinances  will  not  execute  themselves;  and 
to  deny  it  the  power  to  have  them  executed  would  be  to  render 
it  useless  and  helpless.  When  it  makes  a  contract  witliin  tbe 
scope  of  its  power  — ■  not  ultra  vires  —  which  is  not  against  pub- 
lic policy,  and  not  fraudulent,  it  must  be  enforced  the  same  as 
the  contract  of  a  business  corporation,  or  a  person."  When  a 
municipality  enters  into  a  contract  with  an  individual  or  a 
corporation  for  the  lighting  of  its  streets  it  acts  by  its  power 
to  contract,  and  not  in  its  legislative  capacity  —  in  its  private 
capacity,  as  has  been  said,  and  not  in  its  public  capacity.^  Offi- 
cers acting  under  the  charter  have  the  power  to  bind  the  mu- 

1  Indianapolis       v.      Indianapolis  etc.,  Co.,  9  Neb.  339;  2  N.  W.  Rep. 

Gaslight  and  Coke  Co.,  66  Ind.  396;  870;   Keihl  v.   South  Bend.  76   Fed. 

Indianapolis     v.     Consumers'     Gas  Rep.   921;    44    U.   S.   App.   687;    22 

Trust   Co.,   140  Ind.   107;   39  N.  E.  C.    C.    A.    618;    36    L.    R.    A.    228; 

Rep.  433;  27  L.  R.  A.  514;  48  Amer.  Waymart   Water    Co.   v.    Waymart, 

and,  Eng.  Corp.  Cas.  151 ;  San  Fran-  4    Pa.    Supr.    Ct.    211;    Winfield   v. 

Cisco   Gas   Co.    v.    San   Francisco,   9  Winfield   Gas   Co.,   37   Kan.   24;    14 

Cal.    453;     Richmond    County  *Gas  Pac.  Rep.  499;   Conyers  v.  Kirk,  78 

Co.    V.    Middleton,    59    N.    Y.    228;  Ga.  480;   3   S.  E.  Rep.  442;   Anoka 

Harlem   Gaslight  Co.   v.   Mayor,   33  W.  W.,  etc.,  Co.  v.  Anoka,  109  Fed. 

N.   Y.    309,   affirming   3   Robt.    100;  Rep.  580;   Crowder  v.  Sullivan,  128 

Davenport    Gaslight   Co.    v.    Daven-  Ind.  486;   28   N.  E.  Rep.  94;    13  L. 

port.  13  la.  229;  State  V.  Milwaulcee  R.    A.    647;    Gosport   v.    Pritchard, 

Gaslight   Co.,  29   Wis.   454;    9   Am.  156  Ind.  400;   59  N.  E.  Rep.   1058; 

Rep.   598 ;   Norwich  Gaslight  Co.  v.  Seward    v.    Liberty,    142    Ind.    551 ; 

Norwich    City    Gas    Co.,    25    Conn.  42   N.    E.    Rep.    39;    Gaslight,    etc., 

19;   Philadelphia  v.  Fox,  64  Pa.  St.  Co.  v.  New  Albany,  156  Ind.  406;  59 

169;    Garrison   v.    Chicago,    7    Biss.  N.  E.  Rep.  176. 
480;    Nebraska    City    v.    Nebraska, 


MUXICIPAL    GAS    CONTRACTS.  447 

nicipalitv;  and  it  cannot  be  urged  tliat  they  were  not  officers 
de  jure.'  The  fact  that  a  municipality  is  authorized  to  build 
and  maintain  a  plant  of  its  own  does  not  necessarily  prevent 
it  from  making  a  contract  for  light,  and  this  is  true  even 
though  in  the  charter  authorizing  the  building  of  such  a  plant  is 
bestowed  no  specific  power  to  enter  into  a  contract  with  a  com- 
pany for  light.  Thus  a  gas  company's  statutorv^  charter  au- 
thorized it  to  furnish  gas  to  the  city  for  which  it  was  created ; 
and  the  charter  of  tlie  city  only  authorized  it  to  build  and 
maintain  a  gas  plant ;  and  yet  it  was  held  that  the  city  could 
bind  itself  by  a  contract  with  the  company  for  lighting  the 
streets/  In  as  much  as  entering  into  a  contract  for  lighting 
the  streets  is  not  the  exercise  of  legislative  power,  the  contract 
need  not  be  by  formal  ordinance  or  resolution.* 

§408.     Constitutional  or  statutory  limitations  on  indebtedness. 

Constitutional  or  statutory  provisions  forbidding  municipali- 
ties contracting  a  debt  beyond  a  certain  amount  or  percentage 
of  its  assessable  property  are  not  uncommon,  and  must  be 
considered  in  entering  into  a  contract  for  light.  If  the  entire 
amount  a  city  will  pay  on  a  twenty  years'  contract  for  light  must 
be  considered  a  debt  of  the  city  when  the  contract  is  entered  into, 

2  Lake  Charles  Ice,  etc.,  Co.  v.  ing.  under  a  statute  providing  that 
Lake  Charles,  106  La.  65;  30  So.  it  "shall  have  power  to  establish, 
Rep.  289.  publish,   modify,    amend,    or    repeal 

3  Newport  v.  Newport  Light  Co.,  ordinances,  rules  or  regulations,  and 
11  Ky.  L.  Rep.  840;  Indianapolis  by  laws,"  "to  provide  lamps  and 
V.  Indianapolis,  etc.,  Co.,  swpra.  gas  fixtures,  and  to  light  the  streets, 

•t  Gosport   V.   Pritchard,    156    Ind.  parks,    and    public   places   of   every 

400 ;   59  N.  E.  Rep.  1058.  description  in  "  the  city.     Taylor  v. 

Power  in  a  city  to  furnish  water  Lambertville    (N.  J.),   10  Atl.  Rep. 

to   its   inhabitants   and   control   the  809. 

erection    of    water    works    for    that  A    statute    may    give    the    courts 

purpose,    is    sufficient    to    authorize  power  to   reform    a   city's   contract, 

the  city  to  enter  into  a  contract  for  Du  Bois  v.   Du  Bois,  etc.,   Co.,   176 

water  and  to  grant  a  franchise  for  Pa.   St.   430;   35  Atl.  Rep.  248;    38 

such  purpose.     Anoka   W.  W.,   etc..  W.  N.  C.  417;  34  L.  R.  A.  92. 

Co.  V.  Anoka,  109  Fed.  Rep.  580.  Vote  to  \evj  tax,   see  Baltimore, 

In  New  Jersey  before   a  city  can  etc..   Co.  v.  People    (111.),  66  N.  E. 

let  a  lighting  contract  it  must  first  Rep.    246. 
establish   a   system   of   street   light- 


448  on.    AND    GAS. 

then  many  a  city  is  so  indebted  that  it  cannot  enter  into  such  a 
contract,  where  such  constitutional  or  statutory-  provisions  pre- 
vail ;  but  where  each  year's  supply  of  light  is  to  be  paid  for  at 
the  end  of  the  year,  and  that  is  to  be  considered  the  extent  of 
the  city's  debt —  a  debt  not  arising  until  the  end  of  the  year  — 
a  very  different  phase  of  the  situation  is  presented.  These 
provisions  are,  of  course,  not  identical  in  language,  although 
the  same  idea  runs  through  them.  A  provision  of  the  constitu- 
tion of  Indiana  provides  that  no  municipal  corporation  "  shall 
ever  become  indebted  in  any  manner  or  for  any  purpose,  to  an 
amount,  in  the  aggregate  exceeding  two  per  centum  on  the  value 
of  the  taxable  property  within  such  corporation,  to  be  ascer- 
tained by  the  last  as^tessment  for  State  and  county  taxes  previous 
to  the  incurring  of  such  indebtedness."  A  city  entered  into  a 
tsventy-year  contract  for  water,  the  rent  payable  annually.  The 
aggregate  amount  of  rent  to  be  paid  under  this  contract  exceeded 
two  per  centum  of  the  assessed  value  of  the  property  within 
the  city ;  but  an  annual  payment  fell  below  that  amount.  The 
contract  was  held  to  be  valid.  "  If  the  aggregate  sum  of  all 
the  yearly  rents,"  said  the  court,  "  is  Uj  be  taken  as  a  debt 
within  the  meaning  of  the  constitution,  then  many  cities  will  be 
left  without  the  means  of  procuring  things  so  essential  to  public 
welfare  and  safety.  We  are  not  to  presume,  unless  coerced  by 
the  vigor  of  the  words,  that  the  framers  of  the  amendment,  or 
the  electors  who  voted  for  it,  intended  to  destroy  the  corporate 
existence  of  our  municipalities  or  to  leave  them  without  water 
or  light.  Xor  are  we  to  presume  that  the  electors  were  ignorant 
of  the  existence,  condition  and  necessities  of  our  great  towns  and 
cities.  On  the  contrary,  we  are  to  presume  these  things  were 
known  to  the  electors,  an<i^that  they  intended  to  foster  the  best 
interests  of  these  instruments  of  local  government. 
To  deny  the  right  to  procure  light  and  water  is  to  deny  it  to 
the  inhabitants  of  the  towns  and  cities,  and  these  form  no  incon- 
siderable part  of  the  population  of  the  State.  We  cannot,  there- 
fore, by  mere  intendment  declare  that  the  electors  of  the  State 
meant  to  lay  down  a  rule  that  would  practically  take  from  the 
inhabitants  of  our  cities  the  yxjwer  to  supply  themselves  with 


.MlXKirAT.    GAS    COXTRACTS.  -^-^^ 

^vater  or  light.     To  reach  the  eoiieUisiou  that  they  meant  to  do 
this,  ^ve  niiist  find  clear  warrant  in  the  language  of  the  constitu- 
tional provision  it.self."     "  It  is  clear  that  if  the  city,"  con- 
tinncs  the  conrt,  "  should  fail  to  perform  its  contract,  the  re- 
covery would  be  for  damages  for  a  breach  of  contract,  and  not 
the  contract  rate  of  compensation,  and,  therefore,  it  cannot  be 
true  that  the  whole  of  the  comi^nsation  is  certainly  demand- 
able  by  the  corix^ration  with  which  it  contracts.      It  may  be  that 
but  a  "small  part  of  even  one  year's  compensation  can  Ik^  recov- 
ered.    On  the  other  hand,  the  faihire  of  the  water  company 
to  perform  may  put  an  end  to  the  contract,  and  that  would,  of 
course,    terminate   all    liability   of    the   umnicipal    c^u■|xu•ation. 
There  cmild  be  no  action  maintained  against  the  city  for  Uie 
recovery  of  compensation  under  the  contract  without  evidence 
that  the  water  had  lx>en  furnished,  and  this  proves  that  there 
is  no  indebtedness  until  the  water  has  been  supplied  in  accord- 
ance with  the  terms  of  the  contract.     The  etfect  of  the  proposed 
contract  is  that  the  city  shall  be  liable  iov  water  as  it  is  fur- 
nished and  not  before.      It  is  not  until  after  the  water  has  Ix^eu 
furnished  that  there  can  Ix^  justly  said  to  be  a  debt,  for,  while 
there  might  be  a  liability  for  damages,  in  case  oi  a  breach  on 
the  ]iart  of  the  city,  there  is  certainty  none  under  the  contract 
until   the  city  has  received  that   iov  which   it  contracted.   ^  If 
it  can  pay  this  indebtedness  when  it  comes  into  existence,  with- 
out exceeding  the  constitutional  limiiation,  then  there  is  no  vkv 
latiou  of  the  letter,  and  surely  none  of  the  spirit  of  the  consti- 
tution.     We  are  careful  to  say  that  when  the  debt  a^ttes  into 
existence,  and  not  to  say  when  it  Ixvomes  due,  for  between  these 
things  there  is  an  essential  difference.     The  object  to  W  accom- 
plished by  the  amendment,  the  condition  and  necessities  of  the 
municiiwlities,  as  kno^^'n  to  the  authors  of  the  amendment,  and 
the  jtist  force  of  the  language  employed,  authorize  us  to  con- 
clude that  the  inhibition  of  the  constitution  does  not  ai>ply  to 
contracts  for  water  to  be   paid  for  as   the  water  is  furnished, 
provided  it  is  shown  that  the  contract  price  can  Iv  i>aid  from 
the  current  revemtes  as  tlu^  water  is  furnished  and  without  in- 
creasino-  the  corix.rate   indebtedness  Ixn-ond    tlu>  constitutional 


450  OIL    AND    GAS. 

limit."  ^  The  Supreme  Court  of  Illinois  has  used  the  follow- 
ing language  concerning  a  contract  for  gas:  "The  contract 
was  for  the  furnishing  of  an  article  for  nightly  consumption 
by  the  city  during  a  period  of  thirty  years,  fixing  the  price  at 
which  the  article  shonld  l>e  furnished.  There  was  no  indol)tod- 
ness  in  advance  of  anything  l)eing  furnished,  but  indebtedness 
arose  as  gas  should  have  been  furnished  along  from  night  to 
night  during  the  period  of  thirty  years.  The  contract  provides 
for  the  payment  monthly,  at  the  end  of  each  month  that  became 
due  for  the  month  then  ended.  When  the  company  has  fur- 
nished the  gas  for  a  certain  month,  then  there  is  a  liability  — 
an  indebtedness  arijips  —  and  not  before,  as  we  conceive.  Hence 
the  amounts  that  might  become  due  and  payable  under  the  eon- 
tract  in  future  years,  did  not  constitute  a  debt  against  the  city 
at  the  time  of  entering  into  the  contract,  within  the  meaning  of 
the  constitution."  ^  But  a  contract  for  a  gas  plant  to  be  leased 
by  the  city,  which  increases  the  city's  indebtedness  beyond  the 
constitutional  limit  is  void,  although  merely  executory ;  ^  and 
so  is  a  contract  whereby  a  city  agrees  to  pay  a  definite  sum 
on  the  completion  of  water  W'Orks  or  a  gas  plant. ^  But  an 
ordinance  providing  that  any  unexpended  appropriations  left 

5  Valparaiso  v.  Gardner,  97  Ind.  687;  .36  L.  R.  A.  228;  Hay  v. 
1;  49  Am.  Rep.  416;  Sackett  v.  New  Springfield,  64  111.  App.  671;  Gold 
Albany,  88  Ind.  473;  45  Am.  Rep.  v.  Peoria.  65  111.  App.  602;  Winston 
467.  V.  Spokane.   12  Wash.   524;  41  Pac. 

6  East  St.  Louis  v.  East  St.  Louis,  Rep.  888;  Brown  v.  Corry.  175  Pa. 
etc.,  Co.,  98  111.  415;  Dively  v.  Cedar  St.  528;  .34  Atl.  Rep.  854  (affirming 
Falls.  27  la.  227;  Grant  v.  Daven-  4  Pa.  Dist.  Rep.  645;  17  Pa.  Co. 
port.  36  la.  396 ;  French  V.  Burling-  Gt.  Rep.  490);  State  v.  Quayle 
ton,  42  la.  614;  Burlington  Water  (Utah).  71  Pac.  Rep.  1060;  New 
Co.  V.  Woodward,  49  la.  58  ^  City  (Jrleans  Gaslight  Co.  v.  New  Or- 
Water  Supply  Co.  v.  Ottumwa,  120  leans,  42  La.  Ann.  1  18;  7  So.  Rep. 
Fed.  Rep.  309;  State  v.  McCauley,  559;  Walla  Walla  Water  Co.,  172 
15  Cal.  429;  People  v.  Pacheco,  27  U.  S.  1;  19  Sup.  Ct.  Rep.  77.  See 
Cal.  175;  Crowder  v.  Sullivan,  128  Appeal  of  City  of  Erie,  91  Pa.  St. 
Ind.  486;  28  N.  E.  Rep.  94;  13  L.  R.  398;  Gosport  v.  Pritehard,  156  Ind. 
A.   647;   Lamar  Water,  etc.,   Co.  v.  400;  59  N.  E.  Rep.  1058. 

Lamar,  140  Mo.  145 ;  39  S.  W.  Rep.  7  Spilman  v.   Parkersburg.   35   W. 

768;  Creston  W.  W.  Co.  v.  Creston,  Va.  605;   14  S.  E.  Rep.  279. 

101    la.   687;    70  N.   W.   Rep.   739;  «  Culbertson    v.    Fulton,    127    111. 

Keihl.  V.  South  Bend,  76  Fed.  Rep.  30;   18  N.  E.  Rep.  781. 

921;  22  C.  C.  A.  618;  44  U.  S.  App. 


MUXICIPAL    GAS    CONTRACTS.  451 

at  the  end  of  each  year  shall  be  used  to  pay  for  a  plant  pur- 
chased of  a  lighting  company,  if  the  city  elects  to  purchase  it; 
and  in  case  of  a  purchase  the  acceptance  shall  create  no  indebt- 
edness against  it  in  favor  of  the  company,  is  valid ;  for  in 
that  case  there  is  no  debt  against  the  city."  If  at  the  time 
a  city  enters  into  a  contract  for  light,  to  run  over  a  long 
series  of  years,  the  indebtedness  of  such  city  is  not  so  great  as 
to  prohibit  it ;  and  before  it  expires  the  debt  so  increases  as  to 
exceed  the  limit  of  an  annual  installment  falling  due,  such 
installment  cannot  be  collected  from  it,  and  the  claim  for  it  is 
void.^" 

§409.     Length  of  term  of  contract. 

Elsewhere,  under  the  head  of  ^Monopolistic  Grants  and  Mono- 
polistic Contracts,  is  treated  the  power  of  a  municipality  to 
bind  itself  in  perpetuity  or  f(jr  a  long  term  of  years  to  take  gas 
from  a  gas  company;  and  it  is  not  necessary  to  repeat  here 
what  is  said  there.  Suffice  to  say  here,  that  when  a  statute  pro- 
vides that  a  nmnicipality  may  enter  into  a  contract  for  the 
lighting  of  its  streets  for  a  certain  number  of  years,  it  cannot 
exceed  the  limitation  thus  imposed  upon  it.  If  the  municipal- 
ity undertakes  to  enter  into  a  contract  for  a  longer  period  than 
the  statute  authorizes,  that  fact  will  not,  it  has  been  held, 
render  it  invalid ;  but  it  will  be  valid  for  the  time  such  numici- 

9  Hay  V.  Springfield,  64  111.  App.  taininj;  tlie  amount  of  such  debt, 
671.  future  interest  which  is  not  due  on 

10  Keihl  V.  South  Bend.  7G  Fe<l.  the  day  it  becomes  necessary  to  fix 
Rep.  921;  44  U.  S.  App.  687;  22  C.  the  sum  of  indebtedness  is  not  to  be 
C.  A.  618;   36  L.  R.  A.  228.  counted.     Unearned  interest  is  not. 

As  to  waiver  of  a  statutory  pro-  within  the  true  intent  and  meaning 

vision    prohibiting  an   indebtedness,  of  the   constitution,    a  part  of  the 

see    Bronx    Gas,    etc.,    Co.    v.    New  debt  of  the  city.     Epping  v.  Colum- 

York.  17  X.  Y.  Misc.  433;  41  N.  Y.  bus   (Ga.),  43  S.  E.  Rep.  803.  citing 

Supp.  3.58.  Dawson   v.    Water   Works    Co.,    106 

In   Georgia  the   rule  was  said  to  Ga.  696;  32  S.  E.  Rep.  907;  Colson 

be    ascertained    by    adding    to    the  v.  Portland,  Fed.  Cas.  3275;   Board 

principal  of  all  outstanding  indebt-  v.  Hopkinsville,   9.5  Ky.  239;   24  S. 

edness   the    amount   of   all    accrued  W.  Rep.  872;  44  Am.  St.  Rep.  222; 

interest  that  may  be  past  due  and  23  L.  R.  A.  402;  Culbertson  v.  Ful- 

payable  on   the  day  the  amount   of  ton.  127  111.  30;   18  X.  E.  Rep.  781; 

the   debt  is  to   be  fi.xed.     In   ascer-  Springfield  v.  Edwards,  84  111.  626. 


452  OIL    AND    GAS. 

pality  is  authorized  to  make  the  contract.  Thus  where  a  munici- 
pality was  empowered  to  enter  into  a  contract  for  the  furnishing 
of  water  for  twenty  years,  and  did  so ;  but  it  was  also  provided 
in  the  contract  that  it  should  remain  in  full  force  for  an  addi- 
tional twenty  years,  if  the  municipality  did  not  purchase  the 
water  works  before  the  expiration  of  the  first  term,  it  Avas  held 
to  be  a  valid  contract  for  the  original  term  of  twenty  years.^^  A 
statute  authorizing  municipal  authorities  to  enter  into  a  contract 
for  water  from  year  to  year  does  not  require  them  to  make  a 
new  contract  every  year,  but  they  may  enter  into  one  for  a  term 
of  years  —  as  for  twenty  years.^'  So  where  a  city  entered  into 
a  contract  for  twenty-one  years,  to  furnish  the  city  with  water ; 
and  the  company  at  great  expense  l)uilt  water  works  and  main- 
tained them  for  four  years;  and  the  city  levied  the  proper  tax 
and  paid  the  hydrant  rental  for  three  years,  and  otherwise 
recognized  the  validity  of  the  contract ;  it  was  declared  that 
the  contract  would  not  be  held  void  for  the  reason  that  it  ex- 
ceeded the  length  of  time  allowed  by  statute,  but  it  would  be 
upheld  for  a  reasonable  time,  the  circumstances  and  condition 
of  the  city  as  to  population  and  assessed  valuation  being  sub- 
stantially the  same,  and  no  other  better  facilities  being  offered 
upon  more  reasonable  terms.^^  It  is  no  objection  to  the  contract 
that  the  term  begins  in  the  future,  or  even  that  it  does  not 
begin  until  after  the  terms  of  the  councilmen  authorizing  it  has 
expired."  But  the  proposition  that  a  contract  exceeding  the 
cess  of  time,  has  not  met  with  favor  from  all  the  courts.  Thus 
length  of  time  permitted  by  a  statute  is  void  only  as  to  the  ex- 
in  Ohio  it  has  been  held  that  such  a  contract  is  void,  absolutely. 
"  The  language  of  the  statute  is,"  said  the  Supreme  Court  of 

11  Neosho   City  Water  Co.  v.  Ne-       licothe,  65  Ohio  St.    186;    62   N.  E. 
osho,   136  Mo.  498;   38    S.  W.   Rep.       Rep.  122. 

89;    State   v.    Ironton   Gas    Co.,    37  Where   a   contract   was   made   for 

Ohio  St.  45.  twenty  years,   instead   of  ten,  as   it 

12  Light,  Heat,   etc.,   Co.  v.  Jack-  should    have    been,    in    which    rates 
son,  73  Miss.  598;   19  So.  Rep.  771.  were  agreed  upon;   it  was  held  that 

13  Columbus  Water  Co.  v.  Colum-  at  the  end  of  the  first  ten  years  the 
bus,  48  Kan.  99;  28  Pac.  Rep.  1097.  municipality     would     regulate     the 

14  Logan  Natural  Gas  Co.  v.  Chil-  .    rates.     State  v.  Ironton  Gas  Co.,  37 

Ohio  St.  45. 


MUNICIPAL    GAS    CONTRACTS.  453 

that  State,  "  that  the  municipality  shall  not  have  power  to  con- 
tract for  any  light  for  any  terra  not  exceeding  ten  years.  This 
implies,  Avith  as  much  force  as  if  it  had  been  expressly  stated, 
that  the  municipality  shall  not  have  power  to  contract  for  any 
longer  than  ten  years,  and  the  natural  inference  is,  we  think, 
that  the  purpose  is  to  inhibit  such  contracts  entirely,  for  the 
only  certain  way  of  insuring  their  non-enforcement  is  to  pre- 
vent their  attempted  execution.  This  may  not  be  effectually 
done  unless  they  are  held  to  be  void."  ^^  This  rule  has  been 
followed  in  Indiana.^"  In  this  Indiana  case  a  contract  was 
entered  into  in  1870  for  gas  for  a  period  of  twenty  years  be- 
ginning in  1871,  and  providing  that  at  the  end  of  that  period 
the  city  "  will  either  purchase  from  the  said  gas  company  .  .  . 
their  gas  works,  pipes,  meters  and  other  property  at  the  fair 
and  reasonable  value  thereof  at  that  time,  or  grant  them  the 
same  right  and  privileges  as  contained  in  this  ordinance  for 
another  term  of  not  less  than  twenty  years,  but  subject,  how- 
ever, to  such  other  reasonable  conditions  as  the  interest  of 
said  city,  and  of  her  citizens,  may  at  that  time  require."  In 
1883  the  legislature  enacted  a  statute  prohibiting  a  city  enter- 
ing into  a  contract  for  light  for  a  term  exceeding  ten  years  in 
duration;  and  in  1888,  three  years  before  the  first  twenty 
years'  period  had  expired,  the  city  entered  into  a  contract,  sup- 
posed to  be  in  pursuance  of  the  terms  of  the  first  ordinance 
noted,  for  gas  for  a  tenn  of  twenty-three  years.  This  last  con- 
tract was  held  to  come  within  the  prohibition  of  the  statute 
referred  to.^^     Of  contracts  extending  over  a  long  term  of  years, 

15  Wellston  V.  Morgan,  59  Ohio  cil.  Illinois  Trust  and  Savings 
St.  147;   52  N.  E.  Rep.  127.  Bank    v.    Arkansas    City,    76    Fed. 

16  Gaslight,  etc.,  Co.  v.  New  Al-  Rep.  271;  22  C.  C.  A.  171;  34  L.  R. 
bany,  156  Ind.  406;  59  N.  E.  Rep.  A.  518;  Adrian  W.  W.  v.  Adrian, 
176.  See  also  to  the  same  effect  64  Mich.  584 ;  .31  N.  W.  Rep.  529  (a 
Manhattan  Trust  Co.  v.  Dayton.  59  thirty-year  contract  construed). 
Eed.  Rep.  327;  8  C.  C.  A.  140;  State  A  power  to  enter  into  a  contract 
V.  Harrison,  46  N.  J.  L.  79;  Somer-  for  gas  "and  to  cause  the  annual 
set  V.  Smith,  20  Ky.  Law  Rep.  1488 ;  expense  thereof  "  to  be  certified  to 
49  S.  W.  Rep.  456.  a  proper  board,  limits  the  power  to 

17  A  contract  for  twenty-one  years  make  only  one  year  contracts.  Tay- 
was  held  not  to  be  an  abuse  of  dis-  lor  v.  Lambertville  (N.  J. ),  10  Atl. 
cretion  on  the  part  of  the  city  coun-  Rep.  809 ;  Atlantic  City  W.  W.  Co. 


454  OIL    AND    GAS. 

tlie  Supreme  Court  of  Iiuliana  said:  "  It  may  be  true  that 
the  contract  creates  an  obligation  for  a  breach  of  which  an 
action  for  damages  will  lie,  but  it  does  not  create  a  right  of 
action  for  the  unearned  comi)ensation.  The  eariiing  of  each 
year's  compensation  is  essential  to  the  existence  of  a  debt.  If 
municipal  corporations  cannot  contract  for  a  long  period  of  time 
for  such  things  as  light  or  water,  the  result  would  be  disas- 
trous, for  it  is  a  matter  of  common  knowledge  that  it  requires  a 
large  outlay  to  provide  machinery  and  appliances  for  supplying 
towns  and  cities  with  light  and  water,  and  that  no  one  will 
incur  the  necessary  expense  for  such  nuichinery  and  appliances 
if  only  short  periods^re  allowed  to  be  provided  for  l)y  contract. 
The  courts  cannot  presume  that  the  legislature  meant  to  so  cri}> 
pie  the  municipalities  of  the  State  as  to  prevent  them  from 
securing  light  upon  reasonable  terms,  in  the  ordinary  mode  in 
which  such  a  thing  as  electric  light  or  gas  is  obtained."  ^^ 

§410.     Extending  term  of  contract. 

The  numicipality  may  extend  the  term  of  a  contract,  so  long 
as  it  keeps  within  the  statutory  period,  and  the  gas  company 
Avill  agi'ee  to  the  extension ;  and  such  extension  is  not  void 
on  the  ground  tluit  it  is  against  public  policy,  where  the  city 
is  authorized  by  the  statute  to  light  its  streets.  Xo  fraud  is 
implied  in  such  a  contract  on  the  ground  that  the  city  cannot 
decrease  the  number  of  lamps  during  the  term.^°  Where  a 
contract  was  for  one  year,  entered  into  in  1856;  and  from  time 
to,  time  new  contracts,  not  always  in  writing,  were  entered 
into,  but  the  company  continued  to  furnish  gas  and  the  city 
to  pay  for  it  according  to  the  last  written  contract  until  a  new 

V.   Reed.   50  N.   J.   L.   665;    15    Atl.  Pa.     St.     101;     34     Atl.     Rep.     .354: 

Rep.   10.     See  Harlem  Gaslight  Co.  Hartford  v.   Hartford,   etc..   Co.,   65 

V.  New  York,   33  N.  Y.  309,  affirm-  Conn.   324;    32  Atl.  Rep.  925;  Den- 

ing  3  Robt.  100.  ver    v.    Hubbard     (Colo.    App.),    68 

18  Crowder   v.    Svillivan,    128   Ind.  Pac.  Rep.  993 ;   Southwest,  etc.,  Co. 

486;    28   N.   E.   Rep.   94;    13   L.   R.  v.  Joplin,    113   Fed.   Rep.  817. 
A.    647;    Foland    v.    Frankton,    142  lo  Parfit   v.    Furguson,    38    N.    Y. 

Ind.  546;   41  N.  E.  Rep.  1031.     See  Supp.  466;   3  N".  Y.  App.  Div.  176: 

Edison  Electric,  etc.,  Co.  v.  .Jacobs,  73  K  Y.  St.  Rep.  621 ;  affirmed  159 

8  Kulp   120;   Black  v.  Chester,   175  N.  Y.  Ill;  53  N.  E.  707. 


MUNICIPAL    GAS    COXTRACTS.  455 

one  Avas  executed,  until  1884,  when  the  h^st  one  was  ex- 
ecuted, which  expired  October  1,  1885  ;  it  was  held  that  the  gas 
furnished  for  one  year  after  the  last  written  contract  expired 
must  be  paid  for  according  to  the  terms  of  such  contract,  and 
that  a  statute  forbidding  the  city  to  enter  into  a  second  contract 
with  a  comj>any  for  gas  to  be  furnished  while  a  contract  was  in 
force  applied  to  a  second  contract  with  another  company  for  gas 
during  the  year  1886.^'' 

§411.     Bids  for  lighting. 

Unless  the  provisions  of  the  municipality's  charter  requires 
it,  or  some  statute,  the  contract  need  not  be  let  by  advertising 
for  bids,  and  if  bids  are  advertised  for,  it  need  not  be  let  to 
the  lowest  bidder,  especially  if  the  right  to  choose  among  the 
bidders  is  reserved.'^  The  letting  of  bids  is  a  judicial  act,  and 
no  action  lies  for  damages  against  a  board  of  aldermen  for  their 
failure  or  refusal  to  award  to  a  company  the  contract  for  light- 
ing a  city."^  If  a  city  formally  reject  a  bid  it  cannot  after- 
wards accept  it  and  bind  the  bidder."*  Specifications  in  an 
advertisements  for  bids,  some  of  which  are  for  proposals  to  light 
a  city  as  it  is  lighted  at  the  time  bids  are  asked,  while  others 
call  for  light  on  any  other  plan,  subject  to  the  condition  of 
furnishing  lights  of  2,000  candle  power,  are  sufficiently  definite, 
and  need  not  be  more  explicit."*  The  mere  fact  that  a  bidder 
has  put  in  the  lowest  bid  does  not  constitute  an  award  of  the 
contract  to  him,  where  the  statute  provides  that  "  if  the  lowest 
bidder  shall  refuse  or  neglect,  within  five  days  after  due  notice 
that  the  contract  has  been  awarded,  to  execute  the  same,  the 

20  Taylor  v.  Lambertville  (N.  J.),  Cincinnati,  28  Wkly.  Law  Bull.  29; 
10   Atl.   Rep.    809.  27    Wkly.    L.    Bull.    412;    11    Ohio 

21  Harlem  Gaslight  Co.  v.  Mayor,  Dec.  581.  If  the  city  endeavors 
33  N.  Y.  309,  affirming  3  Robt.  100.  to  assign  the  certificate   of   deposit 

22  East  River  Gaslight  Co.  v.  accompanying  the  rejected  bid.  an 
Donnelly,  25  Hun  614;  Gaslight  Co.  injunction  will  lie  to  prevent  it  do- 
V.  Donnelly.   93  N.   Y.   557;   People  ing  so. 

V.  Gleason,  121  X.  Y.  631 ;  25  N.  E.  24  Detroit    v.    Hosmer,    79    Mich. 

Rep.   4.  384;   44  N.  W.  Rep.  622. 

23  Brush    Electric    Li^ht    Co.    v. 


456 


OIL    AND    GAS. 


deposit  made  by  him  shall  be  forfeited  to  the  city."  -^  Com- 
petitive bidding  need  not  be  asked  under  the  charter  of  Greater 
New  York  before  entering  into  a  contract  for  a  supply  of  water 
to  tlie  municipality.-""'  If  a  contract  provides  for  an  increase 
of  the  number  of  lights  at  a  fixed  price  per  light  upon  demand  of 
the  city,  it  is  not  necessary  to  advertise  for  bids  concerning  the 
extra  lights."^ 


§412.     How  contract  executed. 

As  a  rule  there  is  nothing  peculiar  about  a  lighting  contract 
with  a  municipalit^'Sliiferent  from  other  contracts,  aside  from 
the  right  to  occupy  the  streets  with  gas  mains  or  pipes.  Usu- 
ally, however,  these  contracts,  evidenced  by  an  ordinance  adopted 
by  the  common  council  or  board  of  trustees,  si^ccifically  setting 
forth  the  terms  of  the  contract,  requires  an  acceptance  i:i 
writing  on  the  part  of  the  gas  or  water  company.  But  there 
is  nothing  to  prevent  the  ordinance  being  binding,  although  the 


25  Erving  v.  New  York  City,  131 
N.  Y.  133;  29  N.  E.  Rep.  1101.  af- 
firming 16  N.  Y.   Supp.  612. 

In  Georgia  a  city  can  make  a 
cash  contract  for  current  supplies  — 
such  as  lamps  and  gasoline  —  for 
lig'hting  streets  through  its  appro- 
priate officers  without  a  formal  reso- 
lution entered  on  its  minutes.  Con- 
yers  v.  Kirk,  78  Ga.  480;  3  S.  E. 
Rep.  442. 

26Gleason  v.  Dalton,  28  N.  Y. 
App.  Div.  555;  51  N.  Y.  Supp.^337 ; 
85  N.  Y.  St.  Rep.  337 ;  reversing  23 
N.  Y.  Misc.  18;  50  N.  Y.  Supp.  90. 

-~  Bronx  Gas^  etc.,  Co.  v.  New 
York,  17  N.  Y.  Misc.  433;  41  N.  Y. 
Supp.    358. 

As  to  bidding  contracts  and  the 
failure  to  accept  them,  see  Vincen- 
nes  V.  Citizens'  Gaslight  Co.,  132 
Ind.  114;  31  N.  E.  Rep.  573;  16 
L.  R.  A.  485;  Searle  v.  Abraham, 
73  la.  507;   35  N.  W.  Rep.  612. 

An     ordinance    calling     for     bids 


must  be  literally  complied  with  by 
the  city,  by  inserting  the  requisite 
number  of  notices  in  a  newspaper 
cahing  for  bids.  Taylor  v.  Lam- 
bertville  (N.  J.),  10  Atl.  Rep.  809. 
The  constitution  of  California 
provides  that  any  person  may  use 
the  streets  of  a  city,  under  proper 
regulations  as  to  damages  and 
charges,  while  there  is  no  city  plint 
for  supplying  light.  A  statute  pro- 
vides that  every  franchise  to  erect 
poles  or  wires  for  electric  lighting 
shall  be  advertised  and  sold  to  the 
highest  bidder.  In  view  of  these 
provisions,  it  Avas  held  that  the 
statutory  i-equirement  of  advertis- 
ing and  sale  was  unconstitutional 
as  applied  to  cities  having  no  mu- 
nicipal plant,  for  the  highest  bidder 
at  the  sale  would  necessarily  take 
an  exclusive  franchise,  while  the 
constitution  required  compet'ti'^n. 
Pereria  v.  'S^^allace,  129  Cal.  397 ;  62 
Pac.  Rep.  61. 


MUNICIPAL    GAS    COXTKACTS.  457 

company  does  not  accept  its  terms  in  writing,  if  it  in  fact  ac- 
cepts its  terms  by  acting  nnder  it ;  and  this  is  true  even  though 
the  ordinance  provides  for  a  written  acceptance ;  for  in  such  an 
instance  the  municipality  waives  a  written  acceptance  by  per- 
mitting the  company  to  go  on  and  comply  with  the  provisions  of 
the  contract  without  first  requiring  a  written  acceptance.  The 
common  council  or  board  of  trustees  may  confer  authority  upon 
a  municipal  officer  to  execute  the  contract,  where  no  positive 
statute  prevents  it ;  especially  where  it  reserves  the  right  to 
approve  it  after  it  is  formally  signed.  In  such  an  instance  as 
the  latter  case  the  approval  of  the  mayor  is  not  necessary.'* 
Under  a  statute  that  the  board  of  street  commissioners  shall 
superintend  and  provide  for  lighting  street  lamps,  and  repair 
them,  it  has  jwwer  to  make  a  contract  with  a  company  for  gas 
at  a  fixed  rate,  where  it  acts  under  the  authority  of  the  city 
council,  the  charter  providing  that  it  shall  cause  to  be  executed 
all  orders  of  such  council."" 

§413.     Liability  of  city  for  breach  of  contract  —  damages. 

If  a  municipality  fails  to  keep  its  contract  with  the  company 
contracting  to  supply  it  with  gas,  it  is  liable  in  damages  for  the 

28  San  Francisco  Gas  Co.  v.  San  as  the  city  may  request  water  to 
Francisco,  6  Cal.  190;  Lake  Charles,  be  furnished,  the  taking  being  op- 
etc,  Co.  V.  Lake  Charles,  106  La.  Lional  with  the  city,  for  the  pur- 
65;  30  So.  Rep.  289;  Gosport  v.  pose  of  determining  the  amount  of 
Priuchard,  1.56  Ind.  400;  59  N.  E.  the  city's  indebtedness.  Gold  v.  Peo- 
Rep.  1058;   Logansport  v.  Dikeman,  ria.  65  111.  App.  602. 

116  Ind.  15;  17  N.  E.  Rep.  587.  An  agreement   by  a  board  of  im- 

If  the  mayor   can  veto  the   ordi-  provement    of    a    to\\Ti   with    a    gas 

nance,    he    must    do    so    within    the  company   that   such    board   will   not 

time    fixed   by    statute.     Pennsylva-  give   its  consent  to  any  other   com- 

nia   Globe   Gas   Co.   v.   Scranton.   97  pany  to  lay  its  pipes  in  the  streets 

Pa.    St.    538.  does    not    prevent   other    officers   be- 

29  Hartford  v.  Hartford  Electric  coming  vested  with  the  power  to 
Light  Co.,  65  Conn.  324;  32  Atl.  determine  whether  leave  shall  be 
Rep.  925.  granted   to   other   companies  to   lay 

An  ordinance  providing  for  water  pipes    in    the   streets    for    exercisin-; 

for  a  city  to  be  furnished  by  a  pri-  the  power.     Parfitt  v.  Ferguson.  159 

vate  corporation  at  an  anmuil  ren-  N.  Y.   Ill;   53  X.   E.  Rep.  707;   af- 

tal,    payable    quarterly    for    thirty  firming  38  X.  Y.  Supp.  466;  3  X.  Y. 

years,  is  a  contract  for  such  times  App.  Div.  176. 


458  OIL    AND    GAS. 

breach.  But  the  company  cannot  recover  the  price  of  gas  not 
furnished,  although  it  was  not  its  fault  that  the  gas  was  not 
furnished.  Xor  is  it  any  defense  for  the  municipality  that  it 
is  unable  to  pay  for  the  gas  it  has  contracted  to  take ;  nor  can 
it  annul  tlie  contract  for  that  reason,  much  less  at  its  own 
will.^"  For  a  failure  to  take  gas  the  company  recovers  what 
profits  it  would  have  made  under  the  contract  during  the  time 
it  was  not  allowed  to  furnish  the  gas,  or,  in  other  words,  the 
difference  between  the  cost  of  furnishing  it  and  its  value  ac- 
cording to  the  terms  of  the  contract.^^  But  an  ordinance  may 
be  so  worded  that  there  is  no  contract  to  take  any  specific 
quantity ;  in  which  event  the  city  will  not  be  liable  for  a  re- 
fusal to  take  gas.  Thus  where  an  ordinance  gave  a  gas  com- 
pany the  right  to  occupy  the  streets  with  its  pipes  and  mains, 
providing  that  it  should  furnish  "  good,  pure  gas  for  all  the 
public  lamps  of  the  city,  and  light,  extinguish  and  keep  them 
in  good  repair,"  at  a  fixed  price  per  annum  per  lamp;  and  also 
provided  that  the  city  council  should  ''  have  the  right  at  all 
times  to  regulate  the  times  of  lighting  ;  nd  extinguishing  the 
street  lamps,  and  of  determining  the  quantity  of  gas  to  be  con- 
sumed by  the  city  " ;  it  was  held  that  there  was  no  express 
contract  by  the  city,  under  the  ordinance  to  take  any  quantity 
of  gas ;  and  that  an  action  for  damages  could  not  be  maintained 
against  the  city  for  a  failure  to  take  it.^^  The  action  of  a  city 
does  not  always  amount  to  a  rescission  of  the  contract;  as  where 
a  city  was  to  take  gas,  at  a  stated  price  per  month,  and  it  under- 

,30  Davenport    Gaslight    and    Coke  the    courts,    and    that    no    existing 

Co.  V.  Davenport    13   la.  229;   Gos-  right    should    be   prejudiced    or    af- 

port  V.  Pritchard,   156  Ind.  4*0.  fected,   but   the   contract   should,   if 

31  Davenport    Gaslight    and    Coke  valid,  remain  to  the  same  extent  as 

Co.   V.  Davenport.   15  la.  6.  though   the   company  had  not   shut 

In    this    case     litigation    having  off  the  gas.     It  was  held  that  this 

arisen   between    the    city    and    com-  special    agreement   did   not    prevent 

pany   to    determine   the   validity  of  the  company  from  recovering  of  tlie 

the    contract,     it    was     agreed    be-  city  damages  for  the  breach  of  the 

tween  them  that  the  company  should  original    contract,    it    having    been 

have    the   privilege   of   shutting   off  declared   valid. 

the  gas   from   the   city  lamps  until  32  Gaslight  and  Coke  Co.  v.  New 

the  question  of  the  validity  of  the  Albany,  156  Ind.  406;  59  N.  E.  Rep. 

contract    should    be    determined    by  176. 


MUNICIPAL    GAS    CONTRACTS.  459 

took  to  rescind  the  contract  by  a  resolution  of  the  council, 
approved  by  the  mayor,  declaring-  the  contract  to  be  at  an  end, 
and  notifying  the  company  of  its  action.  This  was  considered 
not  to  be  a  rescission  of  the  contract,  for  the  gas  company 
had  not  assented  to  it ;  but  only  a  breach  of  it,  for  which  the 
company  could  recover  from  the  city,  in  a  proper  action,  ade- 
quate damages.^^ 

§414.     Assignment  of  lighting^  contract. 

A  distinction  must  be  lx)rne  in  mind  between  a  contract  to 
furnish  light  to  a  city,  and  the  grant  of  a  right  to  lay  pipes  in 
its  streets  and  maintain  a  lighting  plant.  The  distinction  may 
often  seem  shadowy,  but  it  is  in  this  way  that  the  many  seem- 
ingly conflicting  cases  can  be  reconciled.  Usually  lighting  con- 
tracts, either  in  direct  or  indirect  terms,  provide  that  they  may 
be  assigned ;  and  this  is  not  uncommon  with  the  grant  of  privi- 
leges to  occupy  the  streets  —  a  franchise  as  it  is  often  called. 
A  contract  or  ordinance  giving  the  right  to  the  contractor  or 
grantee  to  assig-n  or  transfer  the  contract  or  gTant  is  valid.'* 
So  such  contracts  or  grants  seem  to  be  assignable  in  some  juris- 
dictions without  express  words  in  relation  thereto,  or  without  a 
statute  expressly  authorizing  it.^^  It  has  been  said  that  even 
an  exclusive  franchise  may  be  assigned.^*'  And  under  a  statute 
authorizing  a  city  to  contract  with  a  company  for  a  supply  of 
water,  it  may  agree  that  such  company  may  assign  the  contract 
or  sell  its  plant,  and  that  the  assignee  or  purchaser  shall  sue- 

33  Nebraska  City  v.  Nebraska  117  Cal.  168;  48  Pac.  Rep.  1075. 
City,  etc..  Co.,  9  Neb.  339;  2  N.  W.  Tlie  entire  property,  franchises  and 
Rep.    870.  privileges   cannot  be  transferred  by 

34  State  V.  Laclede  Gasliorht  Co.,  sale  or  lease  for  the  life  of  the 
102  Mo.  472;  14  S.  W.  Rep.  974;  corporation;  and  the  company  thus 
1.5  S.  W.  Rep.  383;  34  Am.  and  incorporated  abandon  its  corporate 
Eng.  Corp.  Cas.  49;  Los  Angeles  v.  duties.  New  Albany  W.  W.  v. 
Los  Angeles  Water  Co..  177  U.  S.  Lousiville.  122  Fed.  Rep.  776. 
558;  19  Sup.  Ct.  Rep.  77;  Pitts-  36  Southern  Illuminating  Co.,  5 
burgh  Carbon  Co.  v.  Philadelphia  Pa.  Dist.  781.  But  see  Bruns^vick 
Co.,  130  Pa.  St.  438;  18  Atl.  Rep.  Gaslight  Co.  v.  United,  etc.,  Co., 
732.  85  Me.  532;  27  Atl.  Rep.  525. 

35  San  Luis  Water  Co.  v.  Estrada, 


460  OIL    AND    GAS. 

ceed  to  all  the  rights  of  the  assignor.^'^  Where  the  right  of 
assignment  is  given,  or  the  assignment  is  acquiesced  in  by 
the  city,  the  assigiiee  must  comply  with  all  the  terms  of  the 
original  contract,'**  or  as  modified  in  the  written  consent  to  the 
assignment.^''  If  the  grant  is  made  to  the  grantee,  his  admin- 
istrator or  assigns,  his  administrator  may  carry  out  its  provi- 
sions after  such  grantee  has  died.*" 

§415.     Rescission  of  contract  —  breach. 

Under  proi>er  circumstances  a  municipality  may  rescind  its 
contract  with  a  gas  company  to  take  gas  from  it  for  municipal 
purposes.  But  it  n^^ist  be  such  a  breach  as  goes  to  the  very 
substance  of  the  contract.*^  And  a  suit  for  that  purpose  can 
be  brought  by  it.*^  But  mere  inadequacy  of  the  supply  of  gas 
is  not  a  sufficient  reason  for  cancelling  the  contract,  unless  a 
proper  demand  for  an  increase  of  the  supply  has  first  been 
made.*^  In  the  case  of  a  contract  for  water,  to  be  furnished 
from  certain  named  springs,  mere  inadequacy  of  the  supply, 
occasioned  by  the  fact,  that  the  springs  did  not  furnish  enough 
water,  was  held  to  be  no  reason  for  a  cancellation  of  the  con- 
tract.** If  the  quality  of  the  gas  is  not  such  as  the  contract 
calls  for,   that  is  not  a  sufficient  reason  for   its  cancellation, 

37  American  W.  W.  Co.  v.  Farm-  141  U.  S.  67 ;  11  Sup.  Ct.  Rep.  892. 
ers'  Loan  and  Trust  Co.,  73  Fed.  The  power  to  make  and  sell  gas 
Rep.  956;  20  C.  C.  A.  133;  36  U.  S.  does  not  imply  the  power  to  sell 
App.  563.  or  assign  the  privilege  to  make  and 

38  Freeport  Borough  v.  Enterprise  sell  gas  given  by  the  company's 
Natural  Gas  Co.,  18  Pa.  Super.  Ct.  charter.  Chicago  Gaslight,  etc., 
73;  Sandy  Lake  v.  Sandy  Lake,  Co.  v.  People's,  etc.,  Co.,  121  111. 
etc.,    Co.,    16    Pa.    Super.    Ct.  |34;  530;    13  N.  E.  Rep.   169. 

Austin  V.  Bartholomew,  107  Fed.  4i  Light,  Heat,  etc.,  Co.  v.  Jack- 
Rep.   349;   46  C.  C.  A.  327.  son,  73  Miss.  598;   19  So.  Rep.  771. 

39 /m  re  Pryor,   55  Kan.   724;    41  42  Light,   Heat,   etc.,   Co.  v.  Jack- 

Pac.  Rep.  958 ;  29  L.  R.  A.  398.  son,    supra. 

What   is   not   an   assignment  and  43  United    States    W.    W.    Co.    v. 

not    a    violation    of   a    statute    for-  Du  Bois,  176  Pa.  St.  439;  38  W.  N. 

bidding    it,    see    Marlborough    Gas-  C.  419;   35  Atl.  Rep.  251. 

light   Co.   V.   Neal,    176   Mass.   217;  **  Du  Bois  v.  Du  Bois  City  W.  W. 

44   N.  E.  Rep.   139.  Co.,   176  Pa.   St.  430;    38  W.  N.  C. 

40  Stein   v.   Bienville   Water   Sup-  417:    35    Atl.   Rep.    248;    34    L.    R. 

ply  Co.,  34  Fed.  Rep.  145;  affirmed  A.  92. 


:^rUXICIPAL  GAS  COXTRACTS.  461 

unless  the  company's  attention  lias  been  called  to  it,  a  demand 
made  for  a  compliance  with  the  contract  in  that  respect,  and 
a  failure  made  or  neglect  to  comply  with  the  demand;  and 
especially  is  this  true,  where  the  quality  of  gas  complained  of 
has  been  furnished  for  a  period  of  years.*^  Where  the  gas 
was  to  be  paid  at  so  much  a  light,  burning  from  sunset  to  sun- 
rise, to  consume  a  certain  number  of  feet  per  hour,  an  inability 
on  the  part  of  the  company  to  furnish  the  full  amount  agreed 
upon,  is  not  a  sufficient  reason  for  cancelling  the  contract, 
where  such  inability  arises  from  frost  getting  into  the  pipes 
and  clogging  them  so  the  gas  cannot  flow  through  them  in  suffi- 
cient quantities/" 

§416.     Discontinuing  use  of  gas. 

A  contract  may  be  so  drawn  as  to  permit  a  change  from  the 
use  of  gas  to  electricity ;  and  this  is  frequently  done.*'  So 
it  is  not  infrequent  occurrence  to  draw  it  so  as  to  authorize 
the  discontinuance  of  some  of  the  lights  and  the  establishment  of 
others.  An  instance  of  this  kind  is  furnished  by  an  Iowa  case. 
There  the  contract  provided  a  city  should  take  gas  for  lighting 
the  streets  and  its  public  buildings  for  ten  years,  but  also 
provided  that  the  city  might  discontinue  tlie  use  of  gas  lamps 
in  the  business  district  after  a  certain  time,  less  than  ten 
years,  and  change  to  electric  light;  and  also  that  it  might 
discontinue  the  gas  lamps  in  the  other  parts  of  the  city  tem- 
porarily or  permanently.  It  was  held  that  the  city  had  no  right 
to  use  other  means  to  lia'ht  the  streets  outside  of  the  business 


*5  Winfield  v.  Winfield  Water  Co.,  supply   its   customers   with.      Ham- 

51  Kan.  70;   32  Pac.  Rep.  663.  ilton  v.  Hamilton   Gaslight  Co.,   11 

A  private  consumer  cannot  bring  Ohio  Dec.    513. 

suit    to    cancel    the    city's    contract  ^^  In  re  Richmond  Gas  Co.  [1893], 

\vith  the  gas  company,  for  there  is  1  Q.  B.  56;   62  L.  J.  Q.  B.  172;   67 

no  privity  of  contract  between  him  L.  T.  554;  41  W.  R.  41;  56  J.  P. 

and     the    company.     Akron    Water  *^  Gaslight  and  Coke  Co.  v.  Xew 

Works  Co.  V.  Brownless,  1  Ohio  Dec.  Albany,  139  Ind.  660;  39  X.  E.  Rep. 

1;    10   Ohio    C.    C.    620.  462. 

The    company    may    buy    gas    to 


462  OIL    AND    GAS. 

district  than  gas ;  and  if  it  choose  to  light  such  streets  it  must 
take  the  gas  from  the  gas  company.*^ 

§417.     Chang-ing  contract. 

A  municipality  can  no  more  change  a  lighting  contract  it  has 
with  a  company,  than  can  an  individual  change  a  contract  with 
such  company,  unless  the  company  agrees  to  such  a  change. 
Usually  such  contracts  provide  for  changes,  and  a  proportionate 
increase  or  decrease  of  the  amount  to  be  paid  according  to  the 
changes  made.  Where  the  guaranty  in  a  contract  was  that  the 
100  lights  provided  for  in  such  contract  would  furnish  good  and 
sufficient  light  for  a  territory  equal  to  that  then  lighted  by  gas, 
it  was  held  that  it  became  inoperative  when  a  portion  of  the 
electricity  necessary  to  supply  the  100  lights  was  diverted  from 
the  street  lights  to  those  in  the  city's  public  buildings.*^ 

§418.     Gas  furnished  not  covered  by  contract. —  No  contract. 

If  a  gas  company  furnishes  a  city  gas  for  lights  outside  of  its 
contract,  then  the  city  is  liable  for  the  amount  thus  supplied, 
regardless  of  the  contract.  "  A  municipality,"  said  Justice 
Fields,  "  cannot  avail  itself  of  the  property  or  lalx»r  of  a  party, 
and  then  screen  itself  from  responsibility  under  the  plea  that 
it  never  passed  an  ordinance  on  the  subject.  The  law  implies 
a  promise  to  pay  in  such  cases."  ^^  If  a  city  receives  gas  and 
uses  it  for  lighting  its  streets,  without  any  contract  relative 
thereto,  it  will  be  liable,  in  an  action  to  recover  therefor,  for 
the  value  of  the  gas  supplied. ^^ 

48  Caijitol  City  Gaslight  Co.  v.  3  Robt.  100.  In  this  case  it  was 
Des  Moines,  93  la.  547;  61  N.*^W.  held  that  a  contract  fixing  the  price 
Rep.  1066;  48  Am.  and  Eng.  Corp.  to  be  paid  for  a  particular  year 
Gas.  138.  is   not  in  its  nature  an   agreement 

49  Brush  Electric  Light,  etc.,  Co.  running  from  year  to  year,  and 
V.  Montgomery,  114  Ala.  433;  21  cannot  fix  the  measure  of  compen- 
So.  Rep.  960.  See  Soiithw'est,  etc.,  sation  for  subsequent  use.  See  Con- 
Co.  V.  Joplin,  113  Fed.  Rep.  817.  yers  v.   Kirk,   78  Ga.   480;    3   S.   E. 

50  San  Francisco  Gas   Co.  v.   San  Rep.  442. 

Francisco,    9    Cal.    4.53.  Mere  delay  to  pay  claim  for  extra 

51  Harlem  Gaslight  Co.  v.  New  lights  furnished  is  not  conclusive 
York  City,  33  N.  Y.  309,   affirming       against   the    right   of   the    company 


MU2fICIPAL    GAS    CONTRACTS.  463 

§419.     Municipality  extending  limits  after  making  contract. 

Contracts  usually  provide  for  new  territory  added  to  that  of 
the  municipality  after  it  is  entered  into,  or  else  they  are 
usually  of  sufficient  elasticity  to  provide  for  such  additional 
territory.  x\nd  this  is  true  even  where  no  contract  has  been 
made  for  lighting,  but  simply  the  right  to  occupy  the  streets  with 
pipes  or  mains  and  supply  private  consumers  has  been  given. 
In  such  instances  the  gas  company  may  occupy  the  new  terri- 
tory without  further  contract  or  grant  and  collect  for  gas  used 
in  the  street  lamps. ^'  In  the  Missouri  case  was  also  involved 
the  element  of  estoppel,  because  of  the  fact  that  the  gas  com- 
pany had  occupied  the  added  territory  for  a  long  series  of 
years.  In  jSTew  York  it  is  held  that  the  consent  of  the  city  is 
not  confined  to  the  streets  existing  at  the  time  the  consent  is 
given,  unless  that  be  the  natural  reading  of  the  consent.^'*  And 
a  gas  company  does  not  violate  its  contract  with  a  municipality 
or  its  franchise  where  it  delivers  gas  to  a  consumer  witliin  the 
city,  Iniowing  at  the  time  the  consumer  will  not  use  it  until 
he  has  transported  it  beyond  tlie  municipal  limits." 

to    pay    for    them.     Brush    Electric  triet  Council  [1897],  2  Ch.   121;  66 

Light,  etc.,  Co.  V.  Montgomery.   114  L.  J.  Ch.  581;  reversing  [1897]   Ch. 

Ala.  433;    21   So.  Rep.   960;   but  if  652;  66  L.  J.  Ch.  N.  S.  286;   76  L. 

both    the    city    and    the     company  T.   Rep.   377. 

thought  the  extra   lights   came   un-  s-i  Lawrence      v.      Methuen,       166 

der    the   general    contract,    then    no  Mass.  206;   44  N.  E.  Rep.  247. 

pay   for  them  up  to  the   date  that  Lender  a  Pennsylvania  statute  giv- 

that  is  discovered  not  to  be  true  can  ing  an  exclusive  franchise  to  a  gas 

be  claimed.     Id.  company,   if   the   city  limits  be  ex- 

52  St.    Louis   Gaslight    Co.    v.    St.  tended  another  company  will  not  be 

Louis,  46  Mo.  121 ;   Cincinnati,  etc.,  given  a  franchise  for  the  new  terri- 

Co.  V.  Avondale,  43  Ohio  St.  257;   1  tory.     In    re    Levis    Water    Co.,    11 

N.  E.  Rep.  527;   Des  Moines  v.  Des  Pa.    Ct.   Rep.    178. 

Moines  W.  VV.   Co.,  95  la.   348;   64  In   this   State  a  corporation   was 

N.  W.  Rep.  269;  People  v.  Deehan,  organized  to  supply  a  village  with 

153  N.  Y.   528;  47  N.  E.  Rep.  787,  water.     It    accepted   the    provisions 

reversing  11   App.  Div.   175;   42  N.  of  the  Pennsylvania  constitution  and 

Y.  Supp.   li)71.  the  Act  of  April  29,   1874.  and  its 

5^  People    V.    Deehan,    153    X.    Y.  supplements  and  amendments  after 

528;    47   N.   E.   Rep.   787,   reversing  the    repeal    of   the    exclusive    privi- 

11   App.  Div.   175;    42  N.  Y.  Supp.  leges  given  to  water   companies  by 

1071.     See  the  English  case  of  Hud-  Sec.   34.    clause   3,   of  that  Act,  by 

dersfield  v.  Ravensthorpe  Urban  Dis-  the   Act   of  June   2,    1887.     It   was 


464 


OIL    AND    GAS. 


§420.     Municipality  receiving  light  under  a  void  contract. 

If  the  contract  between  a  municipality  and  a  lighting  com- 
pany is  void  because  of  a  lack  of  power  on  the  part  of  the 
former  to  bind  itself  by  the  kind  of  a  contract  in  which  it  at- 
tempted to  do  so,  yet  that  will  not  i^ermit  the  municipality 
to  wholly  escape  liability  to  reimburse  the  company  for  the 
light  actually  furnished.  Such  an  instance  is  where  the  mu- 
nicipality has  attempted  to  give  the  company  the  right  to  oc- 
cupy its  streets,  to  the  exclusion  of  all  other  companies.  In 
such  an  instance  the  validity  of  the  contract  in  the  feature 
alluded  to  is  no  defense  in  an  action  to  recover  for  the  light 
furnished.^^  So  where  a  citv  agreed  to  exempt  a  gas  company 
from  city  taxation,  and  to  pay  it  with  money  out  of  its  sinking 
fund,  this  was  held  to  be  no  defense  in  an  action  for  the  price 
agreed  upon,  for  in  that  respect  the  city  could  bind  itself,  and 
the  ultra  vires  provisions  did  not  invalidate  the  entire  contract,^" 
The  fact  that  the  contract  was  let  without  due  advertisement 
for  bids  is  also  no  defense  in  an  action  to  collect  rents. *"''  If 
the  ordinance  be  void  under  which  the  gas  or  water  is  furnished, 
the  city  cannot  arbitrarily  pass  an  ordinance  fixing  the  rates  at 
anv  rate  it  chooses.^^ 


held  that  it  could  not  obtain  an 
exclusive  right  or  privilege  to  sup- 
ply water  to  the  village.  Centre 
Hall  Water  Co.  v.  Centre  Hall,  186 
Pa.  St.  74;   40  Atl.  Rep.   153. 

55  Illnois  Trust,  etc..  Bank  v. 
Arkansas  City,  76  Fed.  Rep.  271;  22 
,C.  C.  A.  171;  34  L.  R.  A.  18;  Gos- 
port  V.  Pritchard,  156  Ind.  400;  59 
N.  E.  Rep.  1134;  Higgins-^v.  San 
Diego.  118  Cal.  524;  45  Pac.  Rep. 
824;  50  Pac.  Rep.  670;  Sandy  Lake 
V.  Sandy  Lake,  etc..  Gas  Co.,  16 
Pa.    Super.   Ct.   234. 

•'*'  Nebraska  City  v.  Nebraska 
City,  etc.,  Co.,  9  Neb.  339;  2  N.  W. 
Rep.  870. 

*56  Nicholasville  Water  Co.  v. 
Nicholasville   (Ky.).  18  Ky.  L.  Rep. 


592;  36  S.  W.  Rep.  549;  38  S.  W. 
Rep.   430. 

57  Des  Moines  v.  Des  Moines  W. 
W.  Co.,  95  la.  348;  64  N.  W.  Rep. 
269. 

Where  the  ordinance  was  void, 
the  price  fixed  in  it  was  held  not 
to  control,  but  the  company  could 
recover  what  the  gas  was  worth, 
not  being  limited  by  the  amount 
named  in  the  ordinance.  Elmira 
Gaslight  Co.  v.  Elmira,  2  Alb.  L. 
Jr.  392.  But  the  fact  that  that 
part  of  the  grant  giving  an  exclu- 
sive grant  is  void,  does  not  disturb 
the  price  fixed  upon  in  the  con- 
tract. East  St.  Louis  v.  East  St. 
Louis  Gaslight  and  Coke  Co.,  98 
111.  415. 


MU^^ICIPAL    GAS    CONTRACTS.  465 

§421.     Contracts  void  for  uncertainty. 

Occasionally  contracts  for  municipal  lighting  are  so  nneertain 
as  to  be  void.  An  illustration  of  this  kind  arose  in  Indiana. 
A  city  agreed  with  a  gas  company  to  take  gas  for  a  i>eriod  of 
twenty-three  years,  and  in  the  contract  it  was  provided  that  if, 
at  any  time  during  the  period  of  the  contract,  the  city  deter- 
mined to  substitute  electric  for  gas  lights  the  gas  company 
should  "  make  the  substitution  of  such  electric  lights  instead  of 
as  many  street  lamps  as  may  be  agreed  upon  between  the  city 
and  the  company,  the  price  at  which  said  electric  lights  shall  be 
furnished  to  be  fixed  by  an  equitable  agreement  between  the 
city  and  the  company."  It  was  held  that  this  contract  was  so 
uncertain  that  it  was  void,  no  agreement  ever  having  been  made 
as  to  what  or  how  many  gas  lamps  were  to  be  removed  or  what 
should  be  the  price  of  the  electric  lights;  and  so  the  court  re- 
fused to  enjoin  the  city  from  procuring  electric  lights  by  com- 
petitive bids.^*  "Wliere  the  contract  Avas  to  be  paid,  after  a 
specified  time,  the  "  average  price  paid  by  other  cities  "  hav- 
ing efficient  works,  and  in  case  of  a  disagreement  the  amount 
should  be  settled  by  arbitration,  it  was  held  to  be  so  imprac- 
ticable, unreasonable,  and  indefinite  that  it  could  not  be  en- 
forced.^^ 

§422.     Moonlight  schedule. 

It  is  a  very  common  part  of  municipality  lighting  contracts 
that  no  charge  shall  be  made  for  light  on  nights  when  the  moon 
furnishes  a  certain  amount  of  light ;  and  usually  they  give  the 
municipality  the  power  to  furnish  a  schedule  of  the  nights,  or 
parts  of  nights,  upon  which  gas  is  not  to  be  furnished.  These 
arrangements  generally  prevail  more  frequently  in  the  smaller 
than  in  the  larger  cities.     Where  such  a  schedule  Avas  in  force, 

In  Grand  Island  Gas  Co.  v.  West,  Albany,  139  Ind.  600;  .39  N.  E.  Rep. 

28  Neb.  852;  45  N.  W.  Rep.  242,  it  462. 

was  held  that  the  amount  could  not  59  Des  Moines  v.   Des  Moines   W. 

exceed  the  price  named  in  the  void  W.    Co..    95    la.    348;     64    N".    W. 

ordinance.  Rep.  269. 

58  Gaslight  and   Coke  Co.  v.  New 


466  OIL    AND    GAS. 

and  it  was  also  provided  in  a  proviso  that  the  city  should  not  be 
liable  for  rent  for  any  lamps  for  any  night  when  lamps  were 
not  lighted,  it  was  held  that  full  force  and  effect  must  be  given 
to  the  entire  contract,  so  as  to  include  the  proviso,  and  that  the 
city  was  not  liable  for  the  rent  of  lamps  on  moonlight  nights, 
when  the  lamps  were  not  lighted.*"' 

§423.     The  price  to  be  paid. 

Elsewhere  has  been  discussed  the  price  to  be  paid  for  gas  as 
fixed  by  ordinance ;  "^  and  it  is  not  necessary  to  again  refer  to 
the  cases  there  cited.  The  municipality  has  the  right  to  agree 
to  the  price  to  be  paid  by  it  for  gas ;  and  it  is  not  a  sufficient 
charge  of  fraud  to  annul  such  contract  merely  to  allege  that 
the  price  agreed  upon  was  higher  than  private  consumers  paid. 
"  The  price  to  be  paid  for  gas  was  within  the  discretion  of  the 
board  of  trustees  of  the  town,"  said  the  Supreme  Court  of  In- 
diana. "  The  only  allegation  concerning  fraud  is  that  the 
price  for  which  appellee  is  about  to  contract  is  three  times 
what  is  paid  by  private  consumers ;  and  for  that  reason  the 
projxjsed  contract  is  fraudulent.  There  is  no  allegation  that 
the  gas  plant  may  not  have  to  be  enlarged  to  furnish  the  gas 
provided  for  in  the  contract ;  or  that  the  plant  is  of  sufficient 
capacity  to  furnish  gas  to  light  the  town,  or  that  any  person  or 
company  will  furnish  the  gas  for  less  per  year  or  per  tliousand 
feet,  or  that  the  gas  to  be  furnished  to  the  town  under  the  pro- 
posed contract,  is  not  the  same  quality  as  that  furnished  to 
private  consumers,  or  that  the  board  of  town  trustees  or  any 
one  or  more  of  them  were  about  to  enter  into  this  contract  from 
any  improper  or  corrupt  motives  or  influence."  ^^ 

§424.     Free  light.  >' 

Often  the  grant  of  a  company  to  occupy  the  streets  contains 
nn  agreement  that  the  grantor  shall  have  a  certain  amount  of 
light    free    of    charge,    in    consideration    of   the    grant.      Such 

CO  Winfield   v.    Winfield    Gas   Co.,  02  Seward    v.    Liberty.     142     Ind. 

37  Kan.  24 ;   14  Pac.  Rep.  499.  551 ;   42   N.   E.   Rep.   39. 

61  See  Sec. 


MUNICIPAL    GAS    COXTKACTS. 


467 


agreements  are  valid,  and  binding  even  upon  the  assignee ;  and 
this  is  true  even  though  the  original  resolution  was  not  properly 
feigned  by  the  officers  of  the  municipality,  if  the  lighting  com- 
pany has  built  its  works,  and  occupied  the  streets  under  it ; 
and  especially  so  is  this  true  if  it  has  furnished  free  light  for 
several  years.*^^  But,  in  the  same  State,  where  a  water  com- 
pany that  had  the  right,  under  a  statute,  to  enter  upon  the 
streets,  it  was  held  by  another  court  that  a  municipal  permit 
was  luireasonable  if  granted  on  the  condition  that  the  company 
should  supply  the  municipality  with  water  and  twenty-five  water 
plugs  free  of  charge  for  all  time.®*  ^Vbere  the  contract  with  a 
natural  gas  company  was  to  furnish  the  village  gas  free  of 
charge  "  for  all  street  lamps,"  it  was  held  that  the  kind  of 
lamps  intended  must  be  determined  by  the  connnon  use  of  the 
word  where  natural  gas  was  used  for  street  lighting;  and  as 
at  the  time  the  contract  was  executed  open  lights  only  were 
used,  it  was  further  held  that  the  gas  company  could  not  re- 
quire the  village  to  use  enclosed  lights  in  order  to  reduce  the 
amount  of  gas  used."''  In  the  charter  of  a  gas  corporation  in- 
corporated for  a  certain  city  was  a  clause  requiring  the  com- 
pany to  furnish,  gas  sufficient  to  supply  five  burners  for  the 
public  streets  for  the  first  year,  ten  for  the  second,  and  so  on, 
and  were  to  complete  all  necessary  works  for  the  manufacture 
of  gas  by  June  1,  1861.  The  company  sued  the  city  to  re- 
cover the  value  of  gas  furnished  it  between  the  years  1864 
and  1866,  and  it  was  held  that  the  charter  did  not  intend  that 
the  gas  company  should  receive  a  compensation  for  the  gas  it 
was  required  to  supply,  the  law  did  not  raise  an  implied  prom- 
ise to  pay  for  it,  and  that  after  the  time  appointed  for  the 
completion  of  the  works  the  company  should  be  allowed  a 
reasonable  time  for  the  laying  of  gas  pipes  in  order  to  supply 


63  Sandy    Lake    v.     Sandy    Lake,  65  Saltsburg  Gas  Co.  v.  Saltsburg, 
etc..  Gas  Co.,  16  Pa.  Super.  Ct.  234.  138  Pa.  St.  2.50;  27  W.  X.  C.   120; 

64  Forty  Fort  v.  Forty  Fort  Water  20  Atl.  Rep.  844;   10  L.  R.  A.  193. 
Co.,  9  Kiilp   (Pa.)   241. 


468  OIL    AND    GAS. 

the  city,  and  the  first  year  named  in  the  contract  should  begin 
after  such  reasonable  time  had  elapsed.*^" 

§425.     Exemption  from  taxation  in  fixing  price  of  gas. 

While  a  municipality  has  no  power  to  exempt  a  gas  company 
from  taxation,  yet  it  may  agree  to  pay  it  so  much  per  lamp,  and 
such  an  additional  sum  per  lamp  as  will  be  equal  to  the  taxes 
paid  by  the  company.  Such  a  method  of  determining  the  price 
to  be  paid  is  not  an  exemption  from  taxation. '^^ 

§426.     Cost  of  light,  out  of  what  fund  paid. 

It  is  often  a  serious  question  with  a  municipality  heavily  in 
debt  whether  such  debts  or  the  expense  of  lighting  shall  be  first 
paid,  or  whether  the  money  intended  for  the  light  can  be  seized 
for  prior  debts.  An  expense  for  light  or  water  is  regarded  as  a 
"  current  expense,"  payable  out  of  "  current  revenues."  "  It 
is  tlie  items  of  expense  essential  to  the  maintenance  of  cor- 
porate existence,  such  as  light,  water,  labor  and  the  like,  that 
constitute  current  expenses  payable  out  of  current  revenues. 
The  authorities  agree  that  current  revenues  may  be  applied  to 
such  purposes  even  though  the  effect  be  to  postpone  judgment 
creditors."  ^^ 

§427.     Appropriation  for  light,   when   necessary  to   validity  of 
contract. 

In  some  States  an  appropriation  must  first  be  made  before  a 
contract  for  lighting  can  be  entered  into  by  a  municipality. 

66  Virginia  City  Gas  Co.  v.  Vir-  1;      49     Am.      Rep.     416;      Coy    v. 

ginia   City,   3   Nev.    320.  City    Council,    17    la.    1;    Coffin    v. 

If  two  companies  consolidate,  one  Davenport,  26  la.  515;  Scott  v.  Da- 
of  which  was  to  furnish  a  cerl^in  venport,  34  la.  208;  Seward  v.  Lib- 
amount  of  free  gas,  the  consoli-  erty,  142  Ind.  551 ;  42  N.  E.  Rep. 
dated  company  will  be  bound  also  39;  Foland  v.  ^rankton,  142  Ind. 
to  furnish  it.  Charity  Hospital  v.  546;  41  N.  E.  Rep.  1031;  Fowler  v. 
New  Orleans  Gaslight  Co.,  40  La.  F.  C.  Austin  Mfg.  Co.,  5  Ind.  App. 
Ann.  382 ;  4  So.  Rep.  433.  489 ;  32  N.  E.  Rep.  596 ;  Laycock  v. 

"■^  Carterville    Improvement,    etc.,  Baton  Rouge,  35  La.  Ann.  475.     See 

Co.    V.   Carterville,   89   Ga.   683;    16  Atlantic   City  W.   W.    Co.   v.   Reed, 

S.  E.  Rep.  25.  50  N.  J.  L.  665;   15  Atl.  Rep.  10. 

<5s  Valparaiso  v.  Gardner,  97  Ind. 


MUNICIPAL    GAS    CONTRACTS.  469 

Whenever  this  is  the  case,  a  contract  for  lighting  before  snch 
appropriation  is  made  is  void.  This  was  held  to  be  the  case 
where  the  following  statute  was  in  force :  "  No  executive  de- 
partment, officers  or  employee  thereof  shall  have  power  to  bind 
such  city  by  any  contract  or  agreement,  or  in  any  way,  to  any 
extent  beyond  the  amount  of  money  at  the  time  already  appro- 
priated by  ordinance  for  the  purpose  of  such  department,  and 
all  contracts  and  agreements,  express  or  implied,  and  all  obliga- 
tions of  any  and  every  sort  beyond  such  existing  appropriations, 
are  declared  to  be  absolutely  void."  The  contract  declared  void 
under  this  statute  was  one  for  street  lights  for  five  years,  at  a 
certain  price  per  light  per  year,  payable  monthly.'''*  Similar 
results  have  been  arrived. at  in  other  States."^" 

§428.     Exhaustion  of  appropriation  as  a  defense. 

In  a  suit  to  recover  for  gas  furnished,  it  is  no  defense  in  the 
city  to  set  up  that  the  appropriation  for  that  purpose  had  been 
exhausted,  and  that  the  debt  had  been  incurred  in  excess  of  the 
amount  appropriated,"^ 

§429.     Tax  to  pay  for  gas  or  to  support  gas  plant. 

The  furnishing  of  light  for  the  streets  and  the  public  places 
of  a  city  or  town  is  such  a  work  of  public  character  as  will 

69  Indianapolis  v.  Wann,  144  Iiid.  W.  Co.  v.  Reed,  50  N.  J.  L.  663 ; 
175;  42  N.  E.  Rep.  901;  Atlantic  15  Atl.  Rep.  10;  Pullman  v.  Mayor, 
City  W.  W.  Co.  V.  Reed,  50  N.  J.  49  Barb.  57.  Contra,  Leadville, 
L.  663;   15  Atl.  Rep.   10.  etc.,   Co.  v.  Leadville,  9  Colo.  App. 

70  Kiichli  v.  Minnesota,  etc.,  Co.,  400;    49   Pac.   Rep.   268. 

58  Minn.  418;  59  N.  W.  Rep.  1088;  7i  New  York  Mutual  Gaslight  Co. 

Garrison   v.    Chicago,    7   Biss.    480 ;  v.  New  York  City.  49  How.  Pr.  227. 

Superior    v.    Norton,    63    Fed.    Rep.  As   to    necessity    for   an   appropria- 

357;  Bladen  v.  Philadelphia,  60  Pa.  tion   under    a   statute,   see   Atlantic 

St.   464:    Philadelphia   v.    Flanigen,  City  W.   W.  Co.  v.  Reed,   50  N.   J. 

47  Pa.  St.  21;   Jonas  v.   Cincinnati,  L.  663;    15  Atl.  Rep.   10;   Taylor  v. 

18   Ohio   318;    Wallas   v.   San  Jose,  Lambertville    (N.  J.).   10  Atl.  Rep. 

lJ  Cal.  180;  San  Francisco  Gas  Co.  809,  and  Kiichli  v.  Minnesota  Brush 

V.  Brickwedel,  62  Cal.  641;  Niles  W.  Light  Co..  58  Minn.  418;  59  N.  W. 

W.   Co.  V.   Niles.   59  Mich.  311;   26  Rep.  1088. 
N.  W.  Rep.   525;   Atlantic  City  W. 


470  OIL    AND    GAS. 

authorize  the  levying  of  a  tax  for  that  piii'i^se/"  But  gas  or 
water  rents  established  by  a  municipality  where  it  furnishes 
the  gas  or  water  are  not  taxes  which  may  be  collected  by  the  tax 
collector,  as  other  taxes  arc  eoUected."''  Power  to  levy  tuxes 
for  gas  or  water  purposes  is  subject  to  the  limitation  of  a  gen- 
eral statute  providing  that  the  aggregate  of  a  numicipal  tax 
shall  not  exceed  a  certain  fixed  limit.'*  Usually  a  city  may 
pay  out  of  its  general  fuiul  any  deficiency  for  gas  furnished, 
after  it  has  exliausted  its  s}3ecial  levy  for  that  pur}x)sc."^ 

§430.      Assessing  cost  of  public  lighting  upon  abutting  property 
—  cost  of  municipal  plant. 

Not  infrequently  tl^e  cost  of  })ublic. lighting  is  assessed  upon 
private  property  abutting  ujwn  the  territory  benefited,  just  as 
the  cost  of  improving  the  roadway  of  a  street  is  assessed,""  And 
so  the  cost  of  building  a  gas  or  water  plant  is  often  assessed 
upon  the  ]>rivate  property  abutting  uix)n  the  gas  or  water  mains 
or  plant ;  and  this  is  considered  a  perfectly  legitimate  method 
of  providing  both  for  the  cost  of  the  light  or  of  the  construction 
of  the  plant.  Where  an  Act  of  Congress  authorized  the  com- 
missioners of  the  District  of  Columbia  to  lay  water  mains 
whenever  and  wherever  they  deemed  them  necessary  for  public 
safety,  comfort  or  health,  and  assess  the  cost  upon  the  abutting 
propert}',  notice  to  the  property  OA\mer  was  deemed  not  neces- 
sary to  support  the  water  main  tax."  So  where  a  statute 
empowered  a  city  to  construct  and  establish  gas  works,  or  to 

T 2  Bronx  Gas,  etc.,  Co.  v.  New  will  not  justify  its  conduct  in  re- 
work City,  17  N.  Y.  Misc.  433;  41  fusing  to  le^•y  the  legal  amount  for 
N.  Y.  Supp.  358 ;  Fellows  v.  Wal-  such  purposes  for  a  subsequent  year, 
ker. '39  Fed.  Rep.  651  (a  case  of  State  v.  Kearney,  49  Neb.  337;  70 
natural  gas).                                     *  N.   W.   Rep.   255;   49  Neb.   325;    68 

T">  Dixon  V.  Entriken,  6  Pa.  Dist.  N.   W.   Rep.  533., 

:  Rip.  447 ;   19  Pa.  Co.  Ct.  414.  75  Creston  W.  W.  Co.  v.  Creston, 

-1  People  V.  Lake  Erie,  etc.,  R.  R.  101  la.  687;   70  N.  W.  Rep.  739. 

Co..    167    111.    283;    47    N.    E.    Rep.  'o  People  v.   Lake  Erie,   etc.,   Co., 

51 S.  167  111.  283;   47  N.  E.  Rep.  518. 

The   fact   that  a   city  had   levied  77  Parsons   v.    District   of   Colum- 

for    several    years    a    tax    in   excess  bia,  170  U.  S.  45;    18  Sup.  Ct.  Rep. 

of   the   maximum    limit   to    pay    for  521. 
gas   furnished    it   under    a   contract 


471 

MCNICIPAL   CAS    CONTRACTS. 

Te^ilate  a  private  establishment,  aud  to  provide  by  ordinance 

Ztar    of  the  expense  of  lighting  the  street  should  be  pa.d 

Cthe  owners  of  lots  fronting  thereon,  and  in  what  manner 

tihe  eost  should  be  assessed  and  collected;  and  aceordmg  to 

the  cost  sno.  .-,■       ,,f  .  ^eitain  number  of  lot  owners 

another  section,  uiK.n  petition  ot  a  cenaiu  ,..,,■„<,  ^..-ij 

within  a  given  distance  fronting  on  a  street  lor  lighting  such 

t  ee"  acfording  to  the  city's  general  plan  ot  -l"----"* 

ueh  city  might  cause  such  part  of  the  street  to  be  lighted   the 

e:  t  of  whidi  should  be  estimated  according  *«  the  long  ho 

the  street  ".>>-'-  ----1^  1  t^^  o^inatt  lot 
trZ  r^ir  it-antV  t,.  ek^ut  for  the  s.eet 
fiSires,  such  as  pipes  and  lampposts,  the  assessment  being 
Lordi;g  to  the  running  foot  and  not  according  to  the  assessed 
value/** 

§431.    Mandamus  to  compel  auditing  or  payment  of  bills. 
'    If  a  city  has  a  board  of  audit  or  of  supervisors  charged  by 
h„v  with  the  duty  of  auditing  bills,  mandanms  lies  to  coraf^ 
uch  board  to  pass  upon  a  bill  for  gas  furnishc  ,  but  the  court 
does  not  neeessarily  require  the  board  to  allow  the  account.     Tn 
allowing  or  rejecting  the  bill  it  has  a  discretion  either  to  a  low 
OT  reiert  it,  and  the  court  cannot  in  this  respect  control  their 
action,  though  it  may  compel  it  to  pass  upon  the  bill.        Hut 
where  an  auditing  board  is  not  provided  for,  the  company  may 
sue  direct  for  the  amount  due,  and  is  not  compelled  to  resort 
to  a  writ  of  mandamus.^" 
§432.     Action  to  recover  for  gas  supplied. 

Under  a  contract  or  ordinance  to  supply  gas  at  a  certain  price, 
the  -as  company  may  recover  from  a  city  for  all  the  gas  it  has 
furnished  unde;  the  contract,  in  an  action  based  on  the  contract 
or  ordinance.-     In  such  an  action,  hills  for  gas  furnished  dur- 

.8  Nelson    v.    La    Porte,    33    Ind.  ^^  ^^^^^^^ ^^  ^''''\l''-  '''  '"'• 

400;   59  N.   E.  Rep.   10o8. 

,;t>       1      V     Snn    Francisco      11  si  London  Gaslight  Co.  v.  Vestry 

79  People    V.     oan    i-rancibeu,     xj.  „  ^    t>     /xt    q  ^    PTi-   9 

Cal.    42         See    Richmond     County  of  Chelsea,  8  C.  B.   (N.   S.)    215, 

Gaslight  Co.   V.  Middletown,  59   N.  Gas  J.  292. 

Y.  228;    1  Hun  433. 


472  OIL    AND    GAS. 

ing  the  months  immediately  preceding  the  months  sued  for 
under  the  same  contract,  and  approved  by  the  city  council,  were 
held  admissible  to  show  the  number  of  lamps  lighted,  and  that 
the  city  recognized  the  validity  of  the  contract  under  which  it 
was  furnished,  and  its  liability  to  pay  for  it.^"  It  is  no  defense 
that  the  gas  works  have  become  a  nuisance,  especially  where  no 
steps  to  have  them  declared  a  nuisance  have  been  taken ;  and  the 
city  must  pay  for  the  gas  it  has  received.*^  The  company  has  a 
right  to  sue  for  the  gas  furnished,  and  is  not  comj^elled  to  re- 
sort to  a  writ  of  mandamus  to  compel  the  city  to  carry  out  the 
contract;  even  though  the  gas  was  to  be  paid  with  by  the  issu- 
ance of  city  warrants  that  did  not  fall  due  for  several  months 
after  they  were  to  be  issued.^* 

§433.     Interest. 

A  gas  company  is  entitled  to  recover  interest  on  its  bills  past 
due ;  such  bills  coming  within  the  general  interest  law^s  of  the 
State.^' 

§434.     Lamps  —  posts. 

A\^iere  the  word  "  lamps  "  is  used  in  a  contract  to  light  a 
city  with  natural  gas,  the  contract  contemplates  such  lamps  as 
are  commonly  used  in  the  natural  gas  region ;  and  wdiere  only 
open  lamps  were  used  in  a  region  where  the  gas  was  to  be  fur- 
nished, it  was  held  that  the  city  could  not  be  compelled  to 
use  closed  lamps,  in  order  to  lessen  the  consumption  of  gas.^® 

8-  Davenport  Gaslight  Co.  v.  Da-  In    a  .suit    for   the    price    of   gas 

venport,  13  la.  229.  furnished  under  a  contract,  the  rec- 

83  Davenport  Gaslight  Co.  v.  Da-  ord  of  the  city  engineer  and  regis- 

venport,  supra.  ter   of   the   gas   inspector   was   held 

1       >*■*  Gosport  V.  Pritchard,  156  Ind.  to  be  competent  evidence.     St.  Loui3 

400;   59  N.   E.  Rep.   10.58.  Gaslight    Co.   v.    St.   Louis,    86   Mo. 

If   the   proper   municipal   author-  49.5. 

ity  has  passed  upon  and  allowed  the  85  Xeosho  City  Water  Co.  v.  Ne- 

bill.  its  action  is  final  so  far  as  the  osho.  U6  Mo.  498;  .S8  S.  W.  Rep.  89. 

city  is  concerned.    Metropolitan  Gas-  sb  Saltsburg  Gas  Co.  v.  Saltsburg, 

light  Co.  v.  Mayor,  4  N.  Y.  Weekly  1.38  Pa.  St.  250;  20  Atl.  Rep.  844; 

Dio-.   82.  10  L.  R.  A.   193. 


MUNICIPAL    GAS    COXTRACTS.  473 

The  word  "  public  posts  "  used  in  a  contract  for  a  supply  of 
gas  to  the  city,  includes  jx)sts  used  and  erected  for  the  benefit 
of  the  public,  as  well  as  those  actually  owned  by  the  city.**^ 
Posts  put  up  by  the  company  to  light  the  streets  belong  to  it ; 
and  it  may  maintain  an  action  of  trespass  for  an  injury  to 
them.  But  if  the  injury,  in  case  it  is  charged  to  have  occurred 
by  negligence,  is  occasioned  by  the  bad  condition  of  the  street, 
without  fault  of  the  defendant,  then  the  defendant  is  not  liable ; 
for  the  relation  between  the  city  and  the  company  is  such  that 
whatever  would  have  been  a  good  defense  against  the  city, 
in  case  the  post  belonged  to  it,  would  be  a  good  defense  against 
the  gas  company.^'^  Where  it  would  require  the  laying  of  one 
mile  of  mains  to  put  up  six  lain]^>-posts  the  city  was  demanding 
the  court  refused  to  compel  the  company  to  set  them  up,  al- 
though a  statute  required  the  company  to  maintain  lamp-posts 
"  in  such  places  or  positions,  as  shall  be  required  from  time  to 
time  by  the  local  board  for  the  purpose  of  lighting  in  a  proper 
and  effectual  manner  any  street."  ^^  Upon  the  expiration  of 
its  contract  with  a  city  to  furnish  it  light,  the  gas  company 
must  remove  its  lamp-posts  from  the  streets  —  the  right  con- 
ferred on  it,  even  by  its  charter,  to  lay  mains  in  the  streets 
not  implying  that  erecting  lamp-posts  on  the  streets  and  re- 
taining them  there  indefinitely  if  it  ceases  to  furnish  gas  and 
its  contract  with  the  city  has  expired.®" 

§435.     United  States  revenue  tax. 

In  Missouri  it  was  held  that  a  gas  company  was  authorized  to 
charge  against  a  city  consuming  gas  the  tax  imposed  by  the 
United  States  upon  illuminating  gas ;  ®^  but  where  a  company 
had  contracted  to  furnish   a   municipality  with  gas   "  free  of 

87  Davenport    Gaslight   and    Coke  oo  New    Orleans    Gaslight    Co.    v. 
Co.  V.  Davenport.  13  la.  229.                      Hart,  40  La.  Ann.  474;   4  So.   Rep. 

88  Roche    V.    Milwaukee    Gaslight       215. 

Co.,  5  Wis.  55.     See  Crystal  Palace  si  St.    Louis   Gaslight    Co.    v.    St. 

Gas  Co.  V.  Idris,  82  L.  T.  200;  64  Louis.  86  Mo.  495,  affirming  11  Mo. 
J.    P.    452.  App.  55. 

89  Worksop  V.   Worksop   Gas  Co., 
22  Gas.  J.  96. 


474  OIL    AND    GAS. 

charge,"  it  was  held  that  it  could  not  recover  the  amount  of  the 
tax  imposed  under  the  Internal  Revenue  Act;  even  though  the 
Act  authorized  the  company  to  add  such  tax  to  the  contract  price 
of  gas  which  had  heen  previously  contracted.''" 

§436.     Waiver  as  to  quality  of  gas  or  light. 

There  is  no  doubt  that  a  city  may  waive  its  right  to  defend, 
when  sued  for  gas  supplied  it,  on  the  ground  that  the  quality  of 
the  gas  was  not  up  to  contract,  the  same  as  it  may  waive 
its  right  to  defend  when  sued  for  water  furnished  it,  on  the 
ground  that  the  water  was  impure.  Thus  a  usage  of  the  water 
for  a  year  without  objection  was  held  to  be  a  Avaiver  of  the 
right  to  defend  on  the  ground  that  it  was  impure.**^  And  even 
though  the  city  does*object,  yet  accepts  the  water  furnished 
as  a  substantial  compliance  with  the  contract,  under  the  honest 
belief  that  such  acceptance  is  for  the  best  interest  of  the  city,  it 
cannot  set  up  as  a  defense,  when  sued  for  the  price,  that  the 
water  was  impure.^* 

§437.     Extending  mains,  failure  to  pay  for  light. 

It  is  as  much  the  duty  of  a  city  or  a  town  to  promptly  pay  the 
gas  company's  bills  for  light  as  it  is  that  of  a  private  citizen; 
and  if  it  does  not  tlie  company  is  not  compelled  to  extend  its 
mains  and  erect  new  gas  posts,  as  it  had  agreed  to  do,  upon 
demand  of  the  municipal  authorities,  to  supply  gas  for  lights  not 
then  in  use.^^ 

§438.     Receiver  bound  by  contract. 

A  receiver  of  a  company  is  bound  by  such  company's  contract 
with  the  municipality  for  gas,  so  long  as  he  continues  to  fur- 

92  Pittsburg  Gas  Co.  v.  PittsbiKg,  mar,  140  Mo.  14.5 ;  39  S.  W.  Rep. 
101   U.  S.  219.  768. 

It  has  been  held  that  the  express  94  Creston  W.  W.  Co.  v.  Creston, 

companies   could   add   to   its   charge  101    la.    (587;    70   N.   W.   Rep.    739, 

for   transportation    the   amount   re-  citing  Philadelphia  v.  Hays,  93  Pa. 

quired   to  be  paid  in  stamps  by  the  St.    72,    and   Winfield   V7ater   Co.    v. 

Internal  Revenue  Act  of  1898  upon  Wintield,  ,51  Kan.  70;  32  Pac.  Rep. 

each  article.  663. 

93  Lamar   Water,  etc.,  Co.   v.  La-  "s  Pensacola    Gas    Co.    v.    Pensa- 

cola,  33   Fla.  322;   14  So.  Rep.  826. 


MUNICIPAL    GAS    CONTRACTS.  475 

nish  it ;  and  he  is  also  bound  by  the  rates  fixed  in  it  to  be  charged 
private  consumers.'**' 

§439.     Municipal  officer  interested  in  contract. 

Statutes  frequently,  if  not  universally,,  forbid  municipal  offi- 
cers to  have  any  interest  in  municipal  contracts;  and  if  they 
have,  generally  declare  such  contracts  void,  either  in  direct 
terms  or  by  construction.  In  a  case  in  j^ebraska  where  the 
secretary  and  treasurer  of  a  corporation  was  also  a  member  of 
the  city  council,  the  contract  of  the  corporation  to  light  the 
streets  of  the  city  was  held  void ;  and  it  was  also  held  that  any 
taxpayer  of  the  city  could  maintain  a  suit  to  have  it  cancelled ; 
but  for  light  actually  furnished  under  it,  the  city  must  pay  what 
it  was  actually  worth,  not  to  exceed  the  contract  price.^^  And 
the  same  result  was  reached  where  a  majority  of  the  members 
of  the  city  council  were  stockliolders  in  a  water  company  sup- 
plying the  city  with  water."®  The  rule  in  some  instances,  how- 
ever, has  been  relaxed.  Thus  where  a  company  received  its 
charter  direct  from  the  legislature,  compelling  it  to  furnish 
liffht  to  all  customers  of  a  certain  citv  who  desired  it,  it  was 
held  that  the  city  must  pay  for  light  received  under  a  contract 
with  the  company,  although  the  mayor  of  the  city  was  presi- 
dent of  and  a  stockholder  in  it.  The  charter  made  all  contracts 
with  the  city  void  in  which  a  city  officer  had  an  interest ;  but 
the  court  considered  that  this  particular  contract  was  not  void 
for  the  reason  that  it  was  one  created  by  the  charter  and  not  by 
the  parties  to  it.""  "Where  a  statute  forbade  a  city  officer  to 
have  an  interest  in  a  contract  of  the  city,  the  taking  of  stock 

96  Manhattan    Trust   Co.    v.   Day-  22  C.  C.  A.  618;   76  Fed.  Rep.  921; 

ton,    59    Fed.    Rep.    327;    16    U.    S.  36  L.  R.  A.  228. 

App.   588 ;   Manhattan  Trust  Co.  v.  s"  Grand  Island  Gas  Co.  v.  West, 

Dayton   Natural   Gas   Co.,    55    Fed.  28  ISeb.   852;  45  N.  W.  Rep.  242. 

Rep.  181.  ysMilford  v.  Milford  Water   Co., 

A    suit    by    a   receiver    appointed  124  Pa.  610;  17  Atl.  Rep.  185. 

by  a  Federal  court  for  rentals  due  so  Capital  Gas  Co.  v.  Young,   109 

for    hydrants,    can    be    brought    in  Cal.   140;   41  Pac.  Rep.  869;   29   L. 

the  United  States  courts.     Keihl  v.  R.   A.   463. 
South    Bend,    44    U.    S.    App.    6S7; 


476  OIL    AND    GAS. 

by  its  mayor  after  the  contract  had  been  let,  in  a  company  that 
succeeded  the  company  obtaining  such  contract,  and  before  such 
succession  took  place,  did  not  render  the  contract  ■void.^''"  But 
the  holding  of  a  single  share  of  stock  by  a  city  councilman  in 
a  company  applying  foi'  a  contract  is  a  violation  of  such  a 
statute.'" 

100  state  V.  Great  Falls,  19  Mont.  loi  Foster  v.  Cape  May,  60  N.  J. 

518  j   49  Pac.  Rep.   15.  L.  78;   36  Atl.  Rep.  1089. 


CHAPTER  XXll. 

MONOPOLISTIC  GRANTS  AND  CONTRACTS. 

§440.  Division  of  subject. 

§441.  Legislature  may  authorize  monopolistic  grants. 

§442.  Same  continued. —  Pennsylvania. 

§443.  Same  continued. 

§444.  Statute  authorizing  exclusive  grant. 

§445.  A  grant  to  use  of  streets  to  exclusion  of  all  others  must  rest  on 
statutory  power. 

§446.  Grant  of  exclusive  franchise  strictly  construed. 

§447.  Legislature  cannot  revoke  monopolistic  clause  of  company's  charter. 

§448.  Municipality  agreeing  not  to  compete  with  gas  company. 

§449.  Legislature  may  not  authorize  monopolistic  grants. 

§450.  Estoppel   to  contest  validity  of  monopolistic  grant,  ratification. 

§451.  A  federal  question. 

§452.  Monopolistic  clause  does  not  avoid  whole  contract. 

§45.3.  Enjoining  passage  of  ordinance. 

§454.  Forfeiture  of  exclusive  franchise. 

§455.  Exclusive  franchise  for  artificial  gas  does  not  exclude  natural  gas. 

§456.  Extension    of   time    for    completion    of   work.— Additional    require- 
ments. 

§457.  Gas  works  built  under  void  grant  or  franchise. 

§458.  Municipality's  right  to  purchase  existing  works  is  optional. 

§459.     Unlawful  combinations  between  gas  companies. 

§460.     Granting  privilege  to  use  streets  does  not  require  a  general  ordi- 
nance.—  General  ordinance  regulating  streets. 

§461.     Contracts  for  light,  length  of  term. 

§462.     Dating  contract  ahead. 

§440.     Division  of  subject. 

The  subject  of  this  chapter  is  divisible  into  two  branches: 
one,  concerning  the  grant  of  the  nse  of  the  streets  of  a  mnnici- 
pality  to  a  gas  company  wherein  it  is  agreed  that  it  shall  have 
possession  of  the  streets  to  the  exclusion  of  ^all  other  gas  or 
lighting  companies,  either  in  perpetuity  or  for  a  designated 
number  of  years;  second,  concerning  contracts  with  gas  com- 
panies for  lighting  either  in  perpetuity,  or  for  a  long  term  of 

477 


478  OIL    AND    GAS. 

years.  This  description  must  constantly  be  "borne  in  mind,  or 
confusion  will  arise  in  examining  the  cases.  Electric  lighting 
cases,  water  company  cases  and  street  railway  cases  are,  of 
course,  cases  analogous  to  those  of  gas,  and  can  properly  be 
used  in  this  discussion.  In  discussing  the  question,  it  must 
be  borne  in  mind  that  in  some  States  constitutional  provisions  ' 
forbid  the  granting  of  exclusive  privileges  to  individuals  and 
corporations ;  and  where  such  provisions  do  not  exist,  some  of 
the  cases  are  made  to  turn  upon  the  fact,  that  the  legislature 
has  not  empowered  the  municipality  to  grant  such  exclusive 
privileges.*^ 

§441.     Legislature  may  authorize  monopolistic  grants. 

ife. 

The  cases  are  not  uniform  upon  the  power  of  the  legislature  to 
make  or  authorize  the  making  of  monopolistic  grants  or  con- 
tracts. One  of  the  leading  cases  arose  in  Wisconsin.  In  that 
State  the  legislature  granted  to  a  company  the  exclusive  privi- 
lege to  manufacture  and  supply  gas  to  the  city  of  Milwaukee 
and  its  inhabitants;  and  this  Act  was  upheld,  the  court  saying: 
"  It  is  claimed,  or  rather  suggested,  that  even  the  legislature 
could  not  confer  this  exclusive  right  upon  the  defendant  to 
manufacture  and  sell  gas  in  the  city  of  Milwaukee.  But  we 
are  not  aware  of  any  constitutional  principle  which  is  violated 
by  the  legislature  granting  such  an  exclusive  franchise.  It  is 
true  that  it  may  create  a  monopoly,  prevent  anything  like  a 
free  and  healthy  competition  in  the  supply  of  gas  to  consum- 
ers, and  thus  operate  to  the  detriment  of  the  public.  But  sup- 
pose this  is  all  conceded ;  upon  what  ground  can  the  court  say 
such  legislation  is  unconstitutional  ?     Of  course,  the  whole  mat- 

1  Beinville    Water    Supply    Co.    v.  railways    if   it   is   a  narrow   street. 

Mobile,   186  U.  S.  212;   22  Sup.  Ct.  and  usually  if  it  is  a  wade  one.     A 

Rep.  820,  affirming  175  U.   S.   109;  monopolistic  grant  of  that  character 

20  Sup.  Ct.  Rep.  40.  is  not  meant  by  the  use  of  the  term 

*i  There  are  some  things  that  by  as     used     in     this     discussion.     In- 

thoir    construction    are    necessarily  dianapolis,   etc.,  R.   R.   Co.  v.   Citi- 

exclusive.     Thus  a  grant  to  a  street  zens'  Street  R.  R.  Co.,  127  Ind.  369; 

railway   to  occupy  a  certain  street  24    N.    E.   Rep.    1054;    8   L.   R.   A. 

necessarily  excludes  all  other  street  539 ;   26  N.  E.  Rep.  893. 


MOXOPOLISTIC    GRAXTS    AND    COXTKACTS.  479 

ter,  under  onr  constitution,  is  under  the  control  of  the  legis- 
lature, which  can  take  from  the  defendant  this  exclusive  privi- 
lege whenever  it  sees-fit  to  do  so.  The  public  concern,  in  having 
some  competition  in  the  supply  of  gas,  is  bj  no  means  without  a 
remedy.  It  can  appeal  to  the  legislature  to  withdraw  this 
exclusive  right  which  it  has  conferred  upon  the  defendant.  And 
'it  is  but  fair  to  assume,  that  whenever  tlie  monopoly  becomes 
oppressive,  the  legislature  will  repeal  the  special  privilege  it 
has  granted.  At  all  events,  it  is  sufficient  to  say  that  the  rem- 
edy is  with  the  legislature,  which  has  ample  authority  to  do 
what  may  be  for  the  best  interests  of  the  citizens  of  Milwau- 
kee." ■  This  decision  is  made  to  rest  upon  the  theory  that  the 
legislature  can  revoke  that  part  of  the  company's  charter  giving 
it  an  exclusive  franchise ;  but  this  claim  has  not  been  upheld  by 
the  Supreme  Court  of  the  United  States,  as  we  shall  see  in 
the  next  section.  The  case  can,  therefore,  be  regarded  as  one 
of  doubtful  authority.  In  Tennessee,  whose  constitution  for- 
bids the  granting  of  "  perpetuities  and  monopolies,"  a  grant  of 
the  exclusive  use  of  the  streets  of  a  city  is  held  not  to  be  a 
monopoly,  and  so  not  forbidden.^  So  in  Xew  Jersey,  without 
any  special  statute  to  that  effect,  a  city's  contract  with  a  com- 
pany to  supply  it  with  water  so  long  as  the  company  com- 
plied with  the  obligations  of  the  contract,  was  upheld.*  A 
case  arose  in  Connecticut  somewhat  at  variance  with  the  case 
already  cited  at  length  from  that  State.  The  city  of  Bridge- 
port entered  into  an  agi-eement  with  a  water  works  company, 
giving  it  the  exclusive  right  to  lay  pipes  in  its  streets  so  long  as 
it  furnished  a  full  supply  of  fresh  water.  The  assignee  of 
this  agreement  expended  a  large  sum  of  money  in  putting  in 
water  works ;  and  this  assignee  was  authorized  by  a  special  Act 
of  the  legislature  to  acquire  all  the  right  of  the  assignor,  '^  in- 
cluding the  right  to  the  sole  and  exclusive  use  of  the  public 
streets,"  etc.,  "  for  the  purpose  of  laying  pipes  therein  to  con- 

2  state  V.  Milwaukee  Gaslight  Co.,  Co.  v.  Hankey,  31  Md.  346,  as  to  a 
29  Wis.  454;  9  Am.  Rep.  598.  wharf. 

3  Memphis  v.  Memphis  Water  Co.,  *  Atlantic  City  W.  W.  Co.  v.  At- 
5  Heisk.   495.     See   Broadway,  etc.,  lantic  City,  48  K  J.  L.  378;  6  Atl. 

Bep.  24. 


480  OIL    AND    GAS. 

duct  water  into  and  about  said  city."  Thirty  years  afterward 
the  legislature  gave  another  company  the  right  to  lay  pipes  and 
supply  water  to  the  same  city ;  and  it  was  held,  conceding  that 
the  city  had  no  power  in  the  first  place  to  grant  an  exclusive 
right,  that  the  legislature  having  suhsecpiently  recognized  this 
claim  of  power  and  authorized  the  assignee  to  acquire,  by  as- 
signment, such  exclusive  right,  and  the  assignee  having  ac- 
cepted the  provisions  of  the  statute  and  performed  what  was 
required  of  it,  there  was  a  contract  existing  between  it  and  the 
city  which  the  legislature  could  not  revoke  or  impair  so  long 
as  the  assignee  supplied  the  city  with  abundance  of  pure  water ; 
and  that  the  second  grant  was  an  impairment  of  that  contract. 
It  was  so  held,  although  a  provision  in  the  first  charter  reserved 
to  the  legislature  the  ']X)wer  to  recall  the  franchise  at  its  pleas- 
ure, which,  it  was  said,  did  not  authorize  the  legislature  to 
impair  the  contract  which  the  city  had  entered  into  for  the 
exclusive  use  of  its  streets  so  long  as  it  should  supply  the  city 
with  w^ater.^  Some  other  cases  uphold  the  power  of  the  legis- 
lature to  create  gas  or  water  companies,  and  endow  them  with 
monopolistic  franchises,  or  to  authorize  municipalities  to  make 
such  grants." 

5  Citizens'  Water  Co.  v.  Bridge-  85  Fed.  Rep.  359 ;  52  U.  S.  App. 
port,  etc.,  Co.,  55  Conn.  1;  10  Atl.  512;  29  C.  C.  A.  568;  Newport  v. 
Rep..  170.  Newport    Light    Co.,    84    Ky.    166; 

6  Crescent  City  Gaslight  Co.  v.  Louisville  v.  Wible,  84  Ky.  290 ;  1 
New  Orleans  Gaslight  Co.,  27  La.  S.  W.  Rep.  605;  Des  Moines  Gas 
Ann.  138.  (In  this  Louisiana  case  Co.  v.  Des  Moines,  44  la.  505; 
it  was  held  that  the  company  en-  Montgomery  Gas  Co.  v.  Montgom- 
titled  to  the  monopoly  might  en-  ery,  87  Ala.  245;  6  So.  Rep.  113; 
join  another  company  denying  its  4  L.  R.  A.  616;  Des  Moines  St.  Ry. 
right,  on  the  ground  that  it  was  a  Co.  v.  Des  Moines.  73  la.  513;  33 
slander  on  its  title.)  St.  Louis  v.  N.  W.  Rep.  610;  35  N.  W.  Rep. 
Gaslight  Co.,  5  Mo.  App.  484f  Jer-  002;  Jackson  County  Horse  Ry.  Co. 
sey  City  Gas  Co.  v.  Dwight,  29  N.  v.  Interstate  Rapid  Transit  R.  R. 
J.  Eq.  242;  Des  Moines  St.  R.  R.  Co.,  24  Fed.  Rep.  306;  Parkersburg 
Co.  V.  Des  Moines,  etc.,  Co.,  73  la.  Gas  Co.  v.  Parkersburg,  30  W.  Va. 
513;  33  N.  W.  Rep.  610;  35  N.  W.  435;  4  S.  E.  Rep.  650;  Centre  Hall 
602.  (In  this  Iowa  case  there  was  Water  Co.  v.  Centre  Hall,  186  Pa. 
no  statute  specifically  authorizing  St.  74;  40  Atl.  Rep.  153;  Lancaster 
the  company  to  make  the  contract.)  Gas  and  Fuel  Co.  v.  Lancaster  Gas 
Memphis  v.  Memphis  Water  Co.,  5  Co..  17  Pa.  Co.  Ct.  Rep.  453;  In  re 
Heisk.  495;  Bartholomew  v.  Austin,  Light  and  Fuel  Co.,  17   Pa.  Co.  Ct. 


MONOPOLISTIC  GRANTS  AND  CONTRACTS.         481 

§442.     Same  continued.—  Pennsylvania. 

The  Pennsylvania  Corporation  Act  of  April  29,  1874,  gives 
to  water  companies  the  right  to  introduce  into  boroughs  and 
cities,  wherever  they  may  he  located,  a  sufficient  supply  of  pure 
water;   and  when  completed,   its  right  in  the  locality  by  its 
works  is  exclusive,   until,   during  a  period  of  five  years,  the 
company  has  divided  among  its  stockholders  a  dividend  equal 
to  eight  i3er  cent  upon  its  capital  stock.     Then  it  is  made  law- 
ful,  after  twenty  years  from  the  introduction  of  the  water, 
for  the  municipality  to  become  the  owner  of  the  water  works, 
by  paying  the  net  cost  of  erecting  and  maintaining  the  same, 
witli  interest  thereon  at  the  rate  of  ten  per  cent  per  annum,  de- 
ducting from  the  interest  the  dividends  theretofore  declared. 
An  Act  of  May  23,  1874,  passed  at  the  same  session  of  the 
legislature  as  the  previous  Act,  provided  that  cities  of  the  third 
class,  should  have  power  in  their  corporate  capacity,  to  "  supply 
with  water  the  city  and  such  persons,  partnerships  and  corpora- 
tions therein  as  may  desire  the  same,  at  such  price  as  may  be 
agreed  upon  and  for  that  purix)se  have  at  all  times  the  unre- 
stricted right  to  make  and  erect  all  proper  works,  machinery, 
buildings,  cisterns,  reservoirs,  pipes  and  conduits  for  the  raising, 
reception,   conveyance  and   distribution  of  water,  or  to  make 
contracts  with,  and  authorizing  any  person,  company  or  asso- 
ciation to  erect  all  proper  water  works,  madiinery,  buildings, 
cisterns,  reservoirs,  pipes  and  conduits  for  the  raising,  recep-- 

Rep    113-   i  Pa.  Dist.  Rop.  GG8 ;  In  Pa.  Ct.  Rep.   371;   Tj^rone  Gas  and 

re  Lancaster   Gas   Co.,    5   Pa.   Dist.  Water   Co.   v.   Tyrone,    195   Pa.    St. 

Rep    244-    In  re  Williamsport  Gas  566;    46    Atl.    Rep.    134;    Atlantic 

Co.,    17    Pa.    Co.    Ct.    Rep.    456;    2  Water  Works   Co.  v.  Atlantic  City, 

Lack   L.  News  112;  5  Pa.  Dist.  Rep.  39  N.  J.  Eq.  367. 

251;   In   re  Pittsburg,   etc.,   Co.,   16  In    Atlantic    City    Water    Works 

Pa    Co    Ct    Rep.  433;  Gas  and  Wa-  Co.  v.  Consumers'  Water  Co.,  44  N. 

ter  Co.  V.   Dowington,    175   Pa.   St.  J.  Eq.  427,  15  Atl.  Rep.  581.  an  act 

U\;  38  W.  N.  C.  376;  34  Atl.  Rep.  giving  an   exclusive   franchise   to   a 

799-  District  of  Columbia  v.  Wash-  water   company   to   supply   Atlantic 

inol'on   Gaslight   Co..   20   D.   C.   39;  City  was  held  void,  for  the  reason 

Sirburban  Electric,  etc.,  Co.  v.  East  that  it  was  special  or  private  legis- 

Oran-e    (N.  J.)     41   Atl.  Rep.  865;  lation.  a  kind  of  legislation  forbid- 

Freeport   W.   W.    Co.   v.   Pragen,    3  den  by  the  State  constitution. 


482 


OIL    AND    GAS. 


tion,  conveyance  and  distribution  of  water,  and  give  such  per- 
sons, company  or  association  the  exclusive  privilege  of  furnish- 
ing water  as  aforesaid  for  any  length  of  time  not  exceeding  ten 
years."  It  was  held  that  there  was  such  a  repugnancy  between 
the  two  Acts  that  both  systems  of  water  works  could  not  be  in 
operation  at  the  same  time ;  and  if  the  city  had  first  authorized 
a  private  company  to  put  in  water  works  it  could  not,  within 
the  ten  years'  period  build  water  works  for  itself.  It  was  con- 
sidered, in  effect,  that  there  was  only  one  thing  to  be  granted, 
namely,  the  right  to  supply  the  city  with  water,  and  when  that 
was  granted  the  jxjwer  was  exliausted  for  the  city  to  make  a 
grant,  as  it  were,  to  itself,  or  rather  assume  the  right  to  erect 
and  maintain  water  works,  when  it  had  already  granted  away 
that  right.  If  the  city  desired  to  supply  its  citizens  with  water, 
it  must  purchase  the  company's  works.^     Several  rulings  of  the 


1  White  V.  Meadville,  177  Pa.  St. 
643;  27  Pitts.  L.  J.  (N.  S.)  97;  39 
W.  N.  C.  102;  35  Atl.  Rep.  695; 
34  L.  R.  A.  567 ;  iletzger  v.  Beaver 
Falls,  178  Pa.  St.  1;  39  W.  N.  C. 
108;  27  Pitts.  L.  J.  (X.  S.)  102;  35 
Atl.  Rep.  1134  (overruling  Lehigh 
Water  Co.'s  Appeal,  102  Pa.  St. 
515)  ;  In  re  Millvale  Borough,  162 
Pa.  St.  374;  29  Atl.  Rep.  641,  644; 
Wilson  V.  Rochester,  180  Pa.  St. 
509;   38  Atl.  Rep.  136. 

Where  the  controversy  was  be- 
tween two  rival  companies  for  the 
same  territory,  an  act  repealing 
the  clause  giving  an  exclusive  fran- 
chise was  upheld.  Luzerne  Water 
Co.  V.  Toby  Creek  \/ater  Co.,  148 
Pa.  St.  568;  24  Atl.  Rep.  117. 

The  exclusive  territorial  franchise 
acquired  by  a  gas  company  under 
the  Pennsylvania  Act  of  April  29, 
1874,  was  not  repealed  by  the  Act 
of  June  24,  1895,  of  that  State. 
Southern  Illuminating  Co.,  5  Pa. 
Dist.  Rep.  781.  Confra.  Consolidat- 
ed Gas  Co.  V.  Mitchell,  1  Dauph. 
Co.  Rep.  71.  An  exckisive  franchise 
may   be    sold   to    another   company. 


Southern  Illuminating  Co.,  5  Pa. 
Dist.  Rep.  781. 

Under  the  Pennsylvania  Act  of 
June  2,  1887,  an  exclusive  franchise 
can  be  granted  to  a  gas  com- 
pany only  when  incorporated  for 
the  manufacture  of  gas  for  light 
alone.  Charters  of  Gas  Companies, 
5  Pa.  Dist.  Rep.  396;  18  Pa.  Co. 
Ct.  Rep.  136.  Contra,  in  re  Phila- 
delphia Gas  Works  Co.,  1  Dauph. 
Co.  Rep.   55. 

This  statute  was  held  to  not  ap- 
ply where,  from  the  nature  of  the 
case,  an  exclusive  right  cannot  in 
fact  be  obtained,  and  the  only  efl'ect 
would  be  to  prevent  competition 
throughout  a  large  city  for  the 
benefit  not  only  of  the  company 
claiming  the  privileges,  but  of  the 
two  other  companies  owned  by  the 
same  persons  and  doing  a  much 
more  extensive  business,  under  cir- 
cumstances which  made  it  much 
more  advantageous  and  easy  for 
such  company  to  fail  to  divide  8 
per  cent  per  annum  for  an  in- 
definite period.  Consolidated  Gas 
Co.  V.   Mitchell,   1  Dauph.  Co.  Rep. 


MOXOPOLISTIC  GEAXTS  AXD  COXTRACTS.         483 

executive  department  of  that  State  have  been  made  concerning 
this  statute  in  the  granting  of  franchises.  Thus  the  exclusive 
franchise  expires  when  the  company  has  for  five  years  declared 
a  dividend  equal  to  eight  per  cent  upon  its  capital  stock,  al- 
though the  earnings  have  been  largely  applied  to  betterments 
for  which  the  stock  dividends  have  been  issued,  until  the  original 
capital  has  been  doubled.*  The  exclusive  franchise  only  em- 
braces the  territory  described  in  the  application  for  it,  and  can- 
not include  "  the  districts  adjacent  "  to  a  city,  although  em- 
braced in  the  application.  The  exclusive  franchise  must  be 
for  the  city  (or  a  certain  named  portion  of  it)  in  which  the 
company  applies  for  a  franchise,  and  it  can  embrace  no  more 
territory  than  is  occupied  by  a  single  city,  nor  can  ""  elastic 
territory  "  be  embraced  in  the  grant.  A  case  of  doubt  as  to 
an  exclusive  franchise  should  be  resolved  against  the  corpora- 
tion." The  executive  department  holds  that  the  consent  of  a 
corporation  already  in  existence  and  having  an  exclusive  fran- 
chise cannot  authorize  the  granting  of  the  same  franchise  to 
another  corporation  in  the  same  district.^"  When  application 
is  made  for  a  franchise  covering  a  territory  covered  by  a  prev- 
ious franchise,  it  must  be  showu  that  the  company  first  granted 
a  franchise  has  never  perfected  it.^^ 

71.     For    other    cases,    see    People's  St.   74;   40  Atl.   Rep.   153;    Carlisle 

Natural    Gas   Co.    v.    Pittsburgh,    1  Gas     and     Water     Co.     v.     Carlisle 

Penn.    C.    C.    Rep.    311;    Appeal    of  Water  Co.,   182  Pa.   St.  17;  37   Atl. 

Meadville    Fuel    Gas    Co.     (Pa.),    4  Rep.  821. 

Atl.  Rep.  733,  reversing  1  Penn.  C.  s  Citizens'  Water  Co.'s  Charter,  6 

C.    Rep.    448;     Lancaster    Gaslight  Pa.  Dist.  Rep.  80. 

and  Fuel  Co.  v.  Lancaster  Gas  Co.,  »  Xew   Castle  Water  Co.  v.  West 

17  Pa.  Co.  Ct.  Rep.  453;  In  re  Light  Xew  Castle  Water  Co.,  6  Pa.  Dist. 

and  Fuel  Co.,   17   Pa.   Co.  Ct.   Rep.  Rep.   10;    18  Pa.  Co.   Ct.  498;   New 

113;    4   Pa.   Dist.   Rep.    668;    In  re  Gaslight  Co.,  7  Pa.  Dist.  Rep.  151; 

Charter   Lancaster   Gas    Co.,    5   Pa.  1  Dauph.  Co.  Rep.  22. 

Dist.  Rep.  244;  In  re  Williamsport  lo /«  re  Philadelphia   Gas  Works 

Gas  Co.,  17  Pa.  Co.  Ct.  Rep.  456;  2  Co.,    1  Dauph.  Co.   Rep.   55. 

Lack.  L.  News  112;  5  Pa.  Dist.  Rep.  n  South   Side   Gas   Co.   v.    South- 

251;    hi   re  Pittsburg  Ilhmiinating  ern    Illuminating    Co..    18    Pa.    Co. 

Gas  Co.,   16  Pa.  Co.  Ct.  433 ;   In  re  Ct.  529 ;  Southern  Illuminating  Co., 

Levis   Water    Co..    11    Pa.    Co.    Ct.  5  Pa.  Dist.  Rep.  781. 

Rep.   178;   Rienker  v.  Lancaster,  14  See  generally.  Centre  Hall  Water 

Lane.    L.    Rev.    b93;     Centre    Hall  Co.  v.  Centre  Hall,  186  Pa.  St.  74; 

Water  Co.  v.  Centre  Hall,   186  Pa.  40   Atl.   Rep.    153. 


484  OIL    AND    GAS. 


§443.     Same  continued. 


A  statute  gave  a  gas  company  the  exclusive  right  to  supply  a 
certain  city  with  gas  for  twenty  years,  giving  to  the  city  the 
right  to  purchase  the  gas  works  in  either  twenty  or  twenty-five 
years,  viz.,  in  1860  or  1865,  under  certain  conditions,  with 
promise  that  if  the  city  did  not  purchase  at  either  of  these  dates 
the  charter  should  continue  in  force  until  1890.  In  1846  the 
city  agreed  to  give  up  its  right  to  purchase  the  works  in  1860, 
the  company  agreeing,  without  the  consent  of  its  stocldiolders, 
that  if  the  city  should  not  buy  in  1S65  it  might  do  so  in  1870, 
or  at  the  end  of  any  five  years  thereafter.  In  1860  the  city 
desired  to  purchase  the  works,  but  the  company  declined  be- 
cause of  the  contract  of  1846.  In  1870  the  city  again  took 
steps  to  pairchase,  but  the  company  resisted  it,  now  alleging 
that  the  contract  of  1846  was  void,  and  therefore  the  time  fixed 
by  the  charter  had  expired.  In  1873  another  contract  was  en- 
tered into  by  both  the  city  and  the  company  and  a  second  gas 
company,  by  which  it  was  agreed  that  the  contract  of  1846 
should  be  cancelled,  all  pending  litigation  dismissed,  and  the 
first  company  should  release  its  exclusive  right  in  a  certain 
portion  of  the  city,  besides  other  provisions  immaterial  here. 
It  was  held  that  the  right  conferred  upon  the  city  to  purchase 
the  works  was  simply  a  privilege  to  become  a  purchaser  in 
1860  and  1865,  laying  the  city  under  no  obligation  to  do  so  at 
either  of  these  times ;  that  the  gas  company  was  estopped  to 
set  up  the  contract  of  1846  as  ultra  vires;  and  that  the  contract 
of  1873  was  not  ultra  vires  on  the  part  of  the  company  as  an 
attempt  on  its  part  to  absolve  itself  from  the  performance  of  a 
corporate  duty,  that  of  burnishing  gas  to  a  portion  of  the  city, 
for  the  right  to  exclude  competition  was  solely  for  the  benefit 
of  the  company,  and  therefore  one  it  might  surrender.^" 

12  St.  Louis  V.  St.  Louis  Gaslight  company  that  if  the  area  of  the  city 

Co.,  70  Mo.  09  reversing  5  Mo.  App.  was    enlarged,    the    exclusive    grant 

484.  followed    into    the    new    area.     St. 

Under    the    original    contract    it  Louis  Gaslight  Co.  v.  St.  Louis,  4(i 

was  held  with  reference  to  this  same  Mo.  12L 


MOXOPOLISTIC    GRANTS    AND    CONTEACTS.  485 

§444.     Statute  authorizing  exclusive  grant. 

In  Connecticut  a  statute  authorized  in  direct  terms  a  gas  com- 
pany to  lay  its  pipes  in  the  streets  of  a  certain  town,  to  the  ex- 
clusion of  all  other  gas  companies.  Xo  duty  of  supplying  the 
public  with  gas  was  imposed.  This  statute  was  held  void,  and 
so  was  an  ordinance  of  the  same  tenor.  The  court  referred  to 
those  instances  where  the  crown  granted  franchises  to  build 
bridges  or  maintain  ferries  and  collect  tolls  for  their  use,  and 
said  that  unless  the  grants  required  the  grantees  to  serve  the 
public,  they  were  void  for  lack  of  consideration,  and  then  said : 
"  It  is  the  duty  as  well  as  the  prerogative  of  the  government  to 
provide  necessary  and  convenient  roads  and  bridges ;  and,  to 
enable  it  to  accomplish  this  object,  it  has  everwhere  what  is 
called  '  the  right  of  eminent  domain  ' ;  the  right  over  individual 
estates  to  resume  them  for  this  and  other  public  purposes. 
Such  a  prerogative  connected  with  a  corresponding  duty,  with 
the  power  to  execute  it  by  the  exercise  of  the  right  of  eminent 
domain,  necessarily  implies  that  it  belongs  to  the  government 
to  determine  what  improvements  are  of  sufficient  importance  to 
justify  the  exercise  of  the  right,  and  when  and  how  it  shall 
be  exercised ;  and  if  a  particular  bridge  or  ferry  is  considered 
sufficient  for  a  particular  locality,  it  may  stipulate  that  within 
such  reasonable  limits  the  particular  bridge  or  ferry  tolls  shall 
not  be  diminished  by  any  other  improvements  of  the  sort.  But 
it  is  no  part  of  the  duty  of  the  government  to  provide  the  com- 
munity with  lights  in  their  dwellings  any  more  than  it  is  to 
provide  them  wnth  the  dwellings  themselves  or  any  part  of  the 
necessaries  or  luxuries  which  may  be  deemed  important  to  the 
oomfort  or  convenience  of  the  community.  And  if  it  be  assured 
that  there  could  be  no  impropriety  in  the  lighting  of  the  streets 
under  the  control  and  directions  of  the  sovereign  power,  this 
would  be  merely  as  a  regulation  of  public  power  or  an  incident 
to  the  duty  to  provide  safe  and  convenient  ways.  And  in  case 
the  power  to  provide  for  lighting  the  streets  is  of  no  importance, 
because  nothing  was  done  to  secure  the  object,  unless  the  plain- 
tiff chose  to  assume  it ;  and  whether  they  would  do  so,  would 
probably   depend   upon  whether  it  could  be  made   profitable. 


486  OIL    AND    GAS. 

As,  then,  no  consideration  whatever,  either  of  a  public  or  pri- 
vate character,  was  reserved  for  the  grant ;  and  as  the  business 
for  manufacturing  and  selling  gas  is  an  ordinary  business,  like 
the  manufacture  of  leather  or  any  other  article  of  trade,  in 
respect  to  which  the  government  has  no  exclusive  prerogative^ 
we  think  that  so  far  as  the  restriction  of  other  persons  than  the 
plaintiff  from  using  the  streets  for  the  purpose  of  distributing- 
gas  by  means  of  pipes  can  fairly  be  view  as  intended  to  operate 
as  a  restriction  upon  its  free  manufacture  and  sale,  it  comes 
directly  within  the  definition  and  description  of  a  monopoly; 
and  although  we  have  no  direct  constitutional  provision  against 
a  monopoly,  yet  the  whole  theory  of  a  free  government  is  op- 
loosed  to  such  grant,*0nd  it  does  not  require  even  the  aid  which 
may  be  derived  from  the  Bill  of  Rights,  which  declares  '  that  no 
men  or  set  of  men  are  entitled  to  exclusive  public  emoluments 
or  privileges  from  the  community,'  to  render  them  void.  .  .  . 
While,  then,  w^e  are  not  called  upon  to  question  the  power  and 
authority  of  the  legislature  to  grant  to  the  plaintiff  the  right  to 
lay  down  their  own  pipes  for  the  distribution  of  gas  through 
the  streets  for  their  own  private  purposes,  we  think,  consider- 
ing that  the  streets,  subject  to  the  public  easement,  are  private 
property,  that  it  does  not  possess  the  power  to  exclude  others 
from  using  them  for  similar  purposes."  ^^ 

§445.     A  grant  to  use  of  streets  to  exclusion  of  all  others  must 
rest  on  statutory  power. 

In  Indiana  a  statute  gave  towns  absolute  control  over  its 
streets.  A  subsequent  statute  provided  that  a  to^vn  should 
liave  the  "  power  to  provide  by  ordinance  reasonable  regula- 
tions for  the  safe  supply,  distribution  and  consumption  of 
natural  gas  within  "  its  limits,  "  and  to  require  persons  or 
companies  to  whom  the  privilege  of  using  the  streets  and  al- 
]<\vs  ...  is  granted  for  the  supply  and  distribution  of 
such  gas  to  pay  reasonable  license  for  such  franchise  and  privi- 
lege."    The  trustees  of  a  town  of  that  State  granted  a  natural 

13  Norwich   Gaslight   Co.    v.  Norwich  City  Gas  Co.,  25  Conn.  19. 


MONOPOLISTIC  GRANTS  AND  CONTRACTS.         487 

gas  companj  the  exclusive  privilege  of  laying  pipes  and  mains 
in  the  streets  and  alleys  of  their  town  for  the  purpose  of  supply- 
ing it  and  its  inhabitants  with  natural  gas ;  and  in  consideration 
of  this  grant  the  company  agreed  to  furnish  natural  gas  to  each 
alternate  street  lamp  free,  and  also  to  furnish  gas  for  lights  in 
front  of  the  church  buildings  of  the  town  without  charge.  The 
gTantee  of  these  privileges  accepted  them  and  laid  its  pipes  and 
mains  in  the  street.  Thereafter  another  gas  company,  with- 
out any  permit  from  the  town,  on  the  assumption  that  the  grant 
was  void,  entered  upon  its  streets  and  began  digging  trenches 
therein  and  laying  pipes.  The  town  brought  an  action  to  en- 
join them,  on  the  theory  that  the  gi'ant  given  the  first  company 
excluded  all  other  companies.  The  court  held  that  without  per- 
mission of  the  town  board  of  trustees  the  second  company  could 
not  lay  its  pijDes  in  the  streets,  and  for  that  reason  alone  it 
should  be  enjoined ;  and  that  it  was  not  precluded  by  its  illegal 
grant  to  the  first  company.  The  court  also  held  that  inasmuch 
as  the  legislature  had  not  empowered  the  town  to  grant  an  ex- 
clusive franchise,  or  one  excluding  all  other  companies  than 
the  grantee  —  it  had  no  power  to  make  such  a  grant.  But  the 
discussion  of  the  question  ran  farther  than  this,  ''  A  munici- 
pal corporation,"  said  the  court,  "  cannot  grant  to  any  fuel  or 
gas  supply  company  a  monopoly  of  its  streets.  There  is  nothing 
in  the  nature  of  the  business  of  such  a  company  making  its 
use  of  the  streets  necessarily  exclusive.  The  spirit  and  policy 
of  the  law  forbid  municipal  corporations  from  creating  monopo- 
lies, by  favoring  one  corporation  to  the  exclusion  of  others.  It 
is  probably  true  that  a  municipal  corporation  may  make  a  con- 
tract with  a  gas  company  for  supplying  light  to  the  public 
lamps  for  a  limited  time,  even  though  it  be  for  a  number  of 
years ;  on  this  point,  however,  there  is  some  conflict,  but  there 
is  no  conflict  on  the  proposition  that,  in  the  absence  of  express 
legislative  authority,  a  municipal  corporation  cannot  grant  to 
any  corporation  the  exclusive  privilege  of  using  its  streets. 
There  is,,  we  know,  much  conflict  among  the  authorities  upon 
the  question  of  the  power  of  the  legislature  to  grant  an  exclu- 
sive right  to  a  gas  company  to  use  the  highways  of  a  municipal 


488 


OIL    AND    GAS. 


corporation ;  and,  under  our  constitution,  it  is  very  doubtful 
whether  the  legislature  possesses  such  authority.  But  we  are 
not  here  concerned  with  that  phase  of  the  question,  since  the 
legislature  has  not  attempted  to  vest  an  exclusive  privilege  in 
any  corporation."  ^*  Some  of  the  courts,  however,  go  very  far 
in   upholding  grants   of  this   kind,   under   the  general   statute 


"Citizens'  Gas,  etc..  Co.  v.  El- 
wood,  114  Ind.  332;  IG  S.  E.  Rep. 
624;  20  Am.  and  Eng.  Corp.  Cas. 
263;  Walla  Walla  v.  Walla  Walla 
Water  Co.,  172  U.  S.  1;  19  Sup. 
Ct.  Rep.  77;  Indpls.  Cable  St.  R.  R. 
Co.  V.  Citizens'  Street  R.  R.  Co., 
127  Ind.  369;  24  N.  E.  Rep.  1054; 
26  N.  E.  Rep.  893;  8  ft  R.  A.  539; 
Crowder  v.  Sullivan,  128  Ind.  486; 
28  N.  E.  Rep.  94;  13  L.  R.  A.  647; 
Rushville  v.  Rushville  Natural  Gas 
Co.,  132  Ind.  575;  28  N.  E.  Rep. 
853;  15  L.  R.  A.  321;  43  Am.  and 
Eng.  Corp.  Cas.  483 ;  Westfield  Gas, 
etc.,  Co.  V.  Mendenhall,  142  Ind. 
538;  41  N.  E.  Rep.  1033;  State  v. 
St.  Louis,  145  Mo.  551;  46  S.  W. 
Rep.  981 ;  State  v.  Cincinnati  Gas- 
light and  Coke  Co.^  18  Ohio  St.  262; 
Saginaw  Gaslight  Co.  v.  Saginaw, 
28  Fed.  Rep.  529;  16  Am.  and  Eng. 
Corp.  Cas.  562;  Garrison  v.  Chicago, 
7  Biss,  480;  Jackson  County  Horse 
Co.  V.  Inter-State,  etc.,  Co.,  24  Fed. 
Rep.  306;  Atchison  Street  Ry.  Co. 
V.  Missouri  Pacific  Ry.  Co.,  31  Kan. 
600;  3  Pac.  Rep.  284;  Davis  v. 
Mayor.  14  N.  Y.  506;  67  Am.  Dec. 
186;  Illinois,  etc.,  Co.  v.  St.  Louis, 
z  Dill.  70;  Memphis  Gayoso  Q^ts  Co. 
V.  Williamson.  9  Heisk.  314;  Hamil- 
ton V.  Hamilton  Gasliglit  and  Coke 
Co.,  11  Ohio  Dec.  513;  Parkersburg 
Gas  Co.  V.  Parkersburg,  30  W.  Va. 
435 ;  4  S.  E.  Rep.  650 ;  Capital  City, 
etc.,  Co.  V.  Talahassee,  42  Fla.  462; 
28  So.  Rep.  810;  Kirkwood  v.  Mera- 
mee  Highlands  Co.,  04  Mo.  App. 
637;  68  S.  W.  Rep.  761. 


The  following  are  some  instances 
of  grants  of  exclusive  franchises  or 
monopolistic  contracts  or  giants: 
Logan  V.  Pyne,  43  Iowa  524 ;  22 
Am.  Rep.  261  (an  omnibus  line, 
not  upheld )  ;  Gale  v.  Kalamazoo,  23 
:\Iich.  344;  9  Am.  Rep.  80  (a  mar- 
ket house,  void)  ;  Montjoy  v.  Pil- 
low, 64  Miss.  705;  2  So.  Rep.  108; 
Louisville  v.  Wible,  84  Ky.  290;  1 
S.  W.  Rep.  605  (removing  the  dead 
animals  of  a  city,  five  years'  con- 
tract sustained)  ;  Chicago  v. 
RumpfT.  45  111.  90;  92  Am.  Dec.  196 
(slaughtering  animals  for  city's  use, 
void);  Le  Claire  v.  Davenport,  13 
la.  210  (a  market,  sustained ),  over- 
ruling Davenport  v.  Kelly,  7  la. 
102 ;  S  .  Louis  v.  Jackson,  25  Mo. 
37  (sale  of  meat  in  a  market  house, 
sustained);  Bloomington  v.  Wahl, 
46  111.  489  (sale  of  meat,  not  sus- 
tained) ;  Her  v.  Ross,  63  Neb.  — ; 
90  N.  W.  Rep.  869  (right  to  collect 
ashes,  void).  See  St.  Louis  v.  We- 
ber, 44  Mo.  547 ;  Bowling  Green  v. 
Carson,  10  Bush.  64;  Buffalo  v. 
Webster,  10  Wend.  100;  Bush  v. 
Seabury,  8  Johns.  418;  Ttigman  v. 
Chicago,  78  111.  405;  Bethune  v. 
Hughes,  28  Ga.  560;  Caldwell  v. 
Alton,  33  111.  417  (sale  of  vegetables 
during  certain  hours  of  the  day,  not 
sustained)  ;  Smith  v.  Westerly,  19 
R.  I.  437;  35  Atl.  Rep.  526;  West- 
erly W.  W.  Co.  V.  Westerly,  80  Fed. 
Rop.  611;  Westerly  W.  W.  Co.  v. 
Westerly,  75  Fed.  Rep.  181 ;  76  Fed. 
Rep.  467. 


MOXOPOLISTIC     GRAX'TS    AXD    COX"  TK  ACTS.  489 

giving  power  to  a  city  over  its  streets  and  to  light  them,  or  secure 
a  company  to  furnish  light  for  that  purpose,  and  to  its  inha]> 
itants.  It  has  been  held  in  a  number  of  well  considered  cases 
that  a  municipality  had  the  power  to  grant  an  exclusive  fran- 
chise.^^' In  a  leading  Xew  York  case  a  statute  authorized  a  city 
to  enter  into  a  contract  for  lighting  its  streets,  but  did  not  specify 
the  length  of  time  it  was  to  run ;  and  it  was  held  that  it  did  not 
confer  powet  to  make  an  absolute  and  binding  contract  for  a 
term  of  years ;  and  that  the  statute  could  be  repealed  while  a 
contract  yet  had  several  years  to  run.  It  was  considered  that 
the  city  could  revoke  the  contract  at  any  time  it  saw  fit.^*^ 

§446.     Grant  of  exclusive  franchise  strictly  construed. 

Courts  do  not  look  with  favor  upon  grants  to  give  exclusive 
rights  to  occupy  the  streets  and  furnish  lights  to  the  municipal- 
ity's inhabitants.  Such  a  grant  is  strictly  construed,  in  fact, 
it  may  be  said  very  strictly  construed.  Thus  an  exclusive  right 
to  furnish  gas  light  will  not  confer  a  right  to  furnish  light  by 
electricity  without  the  consent  of  the  city.^'  And  the  mere  fact 
that  a  gas  company  has  the  right  to  lay  its  pipes  in  the  streets, 

isDes  Moines  St.  Ry.  Co.  v.  Des  U.    S.   48;    18    Sup.    Ct.   Rep.    732; 

Moines,  73  la.  513;   33  N.  W.  Rep.  affirming   110  Mich.  384;   68  N.  W. 

GIO;    3.5  N.  W.   Rep.   602;    Newport  Rep.  304;    Park  Com'rs    v.  Common 

V.  Newport  Light  Co.,  84  Ky.  166;  Council,    28    Mien.    228. 

Fergus   Falls  Water  Co.   v.   Fergus  "  State  legislatures  may  not  only 

Falls,    65    Fed.    Rep.    586;     Illinois  exercise    their    sovereignty    directly. 

Trust  and  Savings  Bank  v.  Arkan-  but  may  delegate  such  portions   of 

sas  City,  76  Fed.  Rep.  271;  22  C.  C.  it  to   inferior   legislative  bodies   as, 

A.  171;    34  L.  R.  A.  518.  in  their   judgment,   is   desirable   for 

iG  Richmond  County  Gaslight  Co.  local    purposes."     Walla    Walla    v. 

V.  Middletown,  59  N.  Y.  228,  affirm-  Walla  Walla  W.  Co.,   172  U.  S.   1; 

ing  1   T.  and  C.  143.  19  Sup.  Ct.  Rep.  77. 

Power   not    expressly    given,   will  i^  Newport  v.  Newport  Light  Co. 

not  be  presumed,  unless  necessarily  (Ky.),   11   Ky.   L.  Rep.   840;    12  S. 

or    fairly    implied    or    incident    to  W.  Rep.  1040;  Saginaw  Gaslight  Co. 

other  powers  expressly  given  —  not  v.  Saginaw,  28  Fed.  Rep.  529;  Par- 

simply  convenient,  but  indispensable  kersburg    Gas    Co.    v.    Parkersburg, 

to   them.     Los   Angeles  v.    Los    An-  30  W.  Va.  435;  4   S.  E.  Rep.  650; 

geles  City  W.   Co.,    177  U.  S.   558;  Helena   v.   Helena   W.   W.   Co.,    122 

20  Sup.  a.  Rep.  736;  Detroit  Citi-  Fed.  Rep.  1 
zens'  St.  Ry.  Co.  v.  Detroit  Ry.,  171 


490  on.    AND    GAS. 

the  city  agreeing  to  take  a  certain  amonnt  of  gas  from  it  for 
a  certain  time,  from  lamps  placed  on  the  street  by  the  company, 
does  not  give  it  exclusive  right.^^  Xor  does  a  statute  give  a 
gas  company  an  exclusive  franchise  merely  because  it  requires 
the  company  to  furnish  the  city  gas  within  three  years,  and 
authorizes  it  to  make  and  sell  gas  for  fifty  years."  An  ex- 
clusive franchise  to  operate  a  street  horse  railway  does  not  pre- 
vent the  municiaplity  granting  a  franchise  to  an  electric  railway 
company.""  Where  a  company  secured  the  exclusive  right  to 
supply  a  city  with  water  from  a  certain  creek,  which  was  the 
most  accessible  source  for  the  city's  water  supply,  it  was  held 
that  this  did  not  prevent  the  city  granting  to  another  company 
the  right  to  supply  the  city  with  water  taken  from  some  other 
source.'^  So  where  the  charter  of  a  company  authorized  it  to 
take  water  from  a  certain  pond  with  water  for  domestic  pur- 
poses, and  forbade  those  who  had  mill  privileges  on  the  pond  to 
cut  below  the  pipes  of  the  company  or  interfere  with  the  water  or 
obstruct  the  works ;  it  was  held  that  this  did  not  give  the  com- 
pany the  exclusive  right  to  the  water  of  the  pond  for  the  pur- 
jx)ses  designated ;  and  the  legislature  could  grant  to  another 
company  the  right  to  take  water  from  such  pond."'  In  Xew 
Jersey,  however,  a  different  rule  of  interpretation  was  allowed 
to  prevail  in  one  case.  A  gas  company  was  authorized  to  lay 
its  pipes,  with  the  consent  of  the  abutting  property  owners,  in 
a  certain  city.  It  did  so,  and  then  another  company  proceeded 
to  do  so  Avithout  any  legislative  authority  whatever.  The  first 
company  sought  and  obtained  an  injunction  against  the  second; 
and  it  was  held  "  ihat  the  grant  of  a  franchise  by  the  State  is, 
by  its  own  extensic  force,  and  without  express  words,  exclusive 
against  all  persons  but  the  State,  and  that  any  attempt  to  exer- 

18  Vineennes  v.  Citizens'  Gaslight  See  Des  Moines  St.  Ry.  Co.  v.  Des 
and  Coke  Co.,  132  Ind.  114;  31  N.  Moines,  etc.,  Ry.  Co.,  73  la.  513;  33 
E.  Rep.  573;   16    L.  R.  A.  485.  N.  W.  Rep.  610;  35  N.  W.  Rep.  602. 

19  Memphis    Gayoso     Gas    Co.    v.  21  Stein  v  Bienville  Water  Supply 
Williamson,  9  Heisk.  314.     See  also  Co.,  34  Fed.  Rep.   145;  affirmed  141 
Sheffield    United    Gas    Co.    v.    Shef-  U.  S.  67;  11  Sup.  Ct.  Rep.  892. 
field  Consumers'  Co.,  2  Gas  J.  360.  22  Rockland  Water  Co.  v.  Camden, 

20  Omaha  Horse  Ry.  Co.  v.  Cable  etc..  Water  Co.,  80  Me.  544;  1.5 
Tramway    Co.,    30    Fed.    Rep.    324.  Atl.  Rep.  785. 


MONOPOLISTIC  GKANTS  AND  CONTRACTS.         491 

cise  like  rights  and  privileges  without  legislative  authority  is  a 
fraud  and  unwarranted  usurpation  of  power."  -^  In  Penn- 
sylvania it  was  held  that  a  charter  ''  for  supplying  light  and 
heat  by  means  of  natural  gas  "  in  a  certain  city  did  not  conflict 
with  the  charter  of  another  company  for  *"  the  manufacture  and 
supply  of  gas  for  fuel  heat,''  at  the  same  place,  both  grants 
being  exclusive."*  So  a  grant  to  supply  "  heat  to  the  public 
from  gas  "  was  held  not  to  conflict  with  another  grant  for  the 
same  territory  "  for  the  purpose  of  supplying  heat  to  the  public 
by  means  of  natural  gas  conveyed  from  such  adjoining  counties 
as  may  be  convenient."  "''  In  the  absence  of  words  giving  an 
exclusive  franchise,  a  contract  between  a  municipality  and  a 
company  for  gas  cannot  be  construed  as  such  a  franchise.  ""^^^ 
A  vote  of  the  town  authorizing  the  town  council  to  give  a  town 
the  right  to  lay  pipes  in  the  streets,  followed  by  the  to-\vn's  silence 
for  five  years  without  taking  action  relative  to  the  purchase  of 
the  plant  (which  it  had  a  right  to  make),  of  the  use  of  the  water 
by  the  town  for  its  own  hall  and  drinking  fountains  where  a 
certain  quantity  of  water  was  to  have  been  furnished  as  a  con- 
dition of  the  grant  of  the  use  of  the  streets  —  nor  a  vote  of  the 
town  to  purchase  the  company's  works  —  does  not  give  an 
exclusive  franchise  to  the  company.""^  The  courts  will  not  adopt 
such  a  construction  of  a  statute  incorporating  a  water  company 
as  will   prevent  the  State  or   a  municipality   from  ever   after 

23  Jersey  City  Gas  Co.  v.  Dwight,  Pa.  St.  Ill;  15  W.  N.  C.  425;  42 
29   N.   J.    Eq.   242.  Leg.  Int.  8L 

24  Erie  Mining  and  Natural  Gas  *25  Bartholomew  v.  Austin,  85 
Co.  V.  Gas  Fuel  Co.,  15  W.  N.  C.  Fed.  Rep.  359;  5^1  U.  S.  App.  512; 
399.  See  Emerson  v.  Common-  29  C.  C.  A.  568;  Long  Island  Water 
wealth,  108  Pa.  St.  Ill;  Carother's  Supply  Co.  v.  Brooklyn.  166  U.  S. 
Appeal,  118  Pa.  St.  468;  12  Atl.  685;  17  Sup.  CL  Rep.  718, 
Rep.  314;  11  Cent.  Rep.  48;  John-  Skaneateles  W.  W.  Co.  v.  Skaneate- 
ston  V.  People's,  etc.,  Gas  Co.  (Pa.),  les,  161  N.  Y.  154;  55  X.  E.  Rep. 
5  Cent.  Rep.  564;  Sterling's  Appeal,  562;  affirming  33  N.  Y.  App.  Div. 
Ill  Pa.  St.  35;   2  Atl.  Rep.  105;   2  642;   54  N.  Y.  Supp.  1115. 

Cent.  Rep.  49;  Wilkes-Barre  Light  26  Westerly  W.  W.  Co.  v.  West- 
Co.  V.  Wilkes-Barre,  etc.,  Co.,  4  erly,  80  Fed.  Rep.  611.  See  West- 
Kulp  47;  In  re  Johnston  (Cat),  69  erly  W.  W.  Co.  v.  Westerly,  75  Fed. 
Pac.  Rep.   973.  Rep.  181;  76  Fed.  Rep.  467;   Smith 

25  Emerson  V.  Commonwealth,  108  v.  Westerly,   19   R.   I.  437;    35  Atl. 

Rep.  526. 


492 


OIL    AND    GAS. 


using  the  waters  of  a  stream  it  has  appropriated  to  its  use,  for 
public  or  municipal  purposes,  without  making  compensation  to 
such  company,  unless  the  legislative  intent  is  beyond  doubt. '^ 
Several  cases  arose  in  ]^ew  Orleans  over  the  attempted  annul- 
ment by  constitutional  provisions  of  exclusive  franchises  prev- 
iously granted ;  and  these  provisions  were  held  to  be  void  by  the 
Supreme  Court  of  the  United  States.  In  one  of  these  cases 
an  ordinance  of  the  city  gave  the  lessee  of  a  hotel  a  right  to 
supply  the  hotel  with  water  drawn  from  the  Mississippi  river 
many  blocks  away  through  mains  laid  in  the  streets,  and  this 
was  held  to  impair  an  exclusive  franchise  previously  granted 
to  a  water  company  to  supply  the  city  and  its  inhabitants  with 
water,  although  there  was  a  clause  in  such  franchise  reserving 
to  the  city  power  to  grant  to  any  person  who  was  "  contiguous 
to  the  river,  the  privilege  of  laying  pipes  to  the  river,  exclusively 
for  his  own  benefit."  It  was  said  that  no  lot  could  be  con- 
tiguous unless  it  actually  fronted  on  the  river,  or  was  separated 


27  St.  Anthony  Falls  Water 
Power  Co.  v.  Board,  168  U.  S.  349; 
18  Sup.  Ct.  Rep.  157.  See  Syracuse 
Water  Co.  v.  Syracuse,  116  N.  Y. 
167;  22  N.  E.  Rep.  381;  5  L.  R. 
A.  546;  In  re  City  of  Brooklyn,  143 
N.  Y.  596;  38  N.  E.  Rep.  983;  26 
L.  R.  A.  270;  Helena  v.  Helena 
W.  W.  Co.,  122  Fed.  Rep.  1. 

As  an  illustration  how  strictly 
contracts  for  an  exclusive  right  to 
supply  a  municipality  with  gas  is 
construed,  see  a  New  York  case 
where  it  Avas  held  that  a  contract 
of  the  board  of  improvements  of  a 
towTi  with  a  gas  company  to  lay  its 
pipes  in  its  streets  did  not  pre^'ent 
other  officers  becoming  vested  with 
the  power  to  determine  whether 
leave  should  be  granted  to  other 
companies  to  lay  pipes  in  the  streets, 
nor  prevent  them  exercising  the 
power.  Parfitt  v.  Furguson,  3  N.  Y. 
App.  Div.  176;  38  N.  Y^  Supp.  466; 
affirmed  159  X.  Y.  Ill;  53  N.  E. 
Rep.   707. 


Granting  a  company  the  right  to 
occupy  all  the  streets  in  a  city  is 
not  the  granting  of  an  exclusive 
franchise.  Walla  Walla  v.  Walla 
Waila  Water  Co.,  172  U.  S.  1;  19 
Sup.  Ct.  Rep.  77;  60  Fed.  Rep.  957; 
Hughes  V.  Momence,  163  111.  535; 
45  N.  E.  Rep.  300;  Long  Island 
Water  Supply  Co.  v.  Brooklyn,  166 
U.  S.  685;  17  Sup.  Ct.  Rep.  718; 
In  re  City  of  Brooklyn,  143  N.  Y. 
596;  38  N.  E.  Rep.  983;  26  L.  R.  A. 
270. 

A  special  act  will  not  be  con- 
strued to  give  a  monopoly  unless  it 
clearly  appears  to  be  so  intended. 
La  Campagine  pour  L'Eclairage  an 
Gas  V.  La  Campagine,  etc.,  25  Can. 
S.  C.  108;  Atlantic  City  W.  W.  Co. 
V.  Consumers'  Water  Co.,  44'  N.  J. 
Eq.  427;  15  Atl.  Rep.  581;  West- 
erly W.  W.  Co.  V.  Westerly,  80  Fed. 
Rep.  611;  Helena  v.  Helena  W.  W. 
Co.,  122  Fed.  Rep.  1. 


MOXOPOLISTIC  GRANTS  AKD  CONTRACTS.         493 

from  the  river  only  by  a  public  highway,  with  no  private  owner 
intervening,  or  possibly,  on  a  block  or  square  so  located."^ 

§447.     Legislature  cannot  revoke  monopolistic  clause  of  company's 
charter. 

In  the  previous  section,  it  is  said  that  the  legislature  had 
the  power  to  revoke  the  monopolistic  feature  of  a  gas  company's 
charter  or  franchise,  and  this  is  said  of  a  charter  where  the 
right  to  change  or  revoke  that  feature  was  not  reserved  in  the 
original  grant.  The  Supreme  Court  of  the  United  States  does 
not  take  this  view  of  the  matter.  The  Louisiana  legislature 
granted  to  a  gas  company  the  exclusive  right,  for  fifty  years, 
to  lay  pipes  in  the  streets  of  I^ew  Orleans  and  furnish  gas  to 
the  inhabitants  of  that  city.  The  company  laid  its  pipes  in 
the  streets,  built  its  works,  and  supplied  gas  for  several  years. 
The  legislature  then  granted  to  another  company  the  right  to 
also  lay  pipes  in  the  streets  and  furnish  gas ;  and  upon  applica- 
tion of  the  first  company,  the  second  company  was  enjoined, 
on  the  theory  that  the  second  grant  infringed  upon  the  rights 
of  the  first  company. '"  The  court  was  careful  to  state  that  the 
granting  of  the  franchise  giving  the  grantee  the  exclusive  right 
to  furnish  gas  to  the  city  did  not  prevent  the  city  adopting 
proper  police  regidations  for  the  control  of  the  gas  company  so 
far  as  they  related  to  the  health  and  protection  of  the  inhabitants 
of  the  city,  and  the  control  of  the  city's  property  and  streets. 
Other  decisions  of  this  court  follow  this  case.^"  The  same  rule 
was  applied  to  a  gas  company  created  in  Kentucky,  even  though 
the  constitution  of  that  State  provided  "  that  all  freemen,  when 
they  form  a  social  compact,  are  equal,  and  that  no  man  or  set 

28  Xew  Orleans  Water  Works  v.  Bridge,  3  Wall.  51.  Contra,  Ham- 
Rivers,  115  U.  S.  674;  6  Sup.  Ct.  il ton  Gaslight  and  Coke  Co.  v.  Ham- 
Rep.  273;   New  Orleans  W.  W.  Co.       ilton,  37  Fed.  Rep.  832. 

V.    Ernst,    32    Fed.    Rep.    5.  so  New  Orleans  W.  W.  Co.  v.  Riv- 

29  New  Orleans  Gas  Co.  v.  Louis-  ers,  115  U.  S.  674;  6  Sup.  Ct.  Rep. 
iana  Light,  etc.,  Co.,  115  U.  S.  650;  273  (reversing  4  Woods  134)  ;  St. 
6  Sup.  Ct.  Rep.  252  (reversing  4  Tammany  W.  W.  v.  New  Orleans  W. 
Woods  90)  ;  Crescent  City  Gaslight  W..  120  U.  S.  64  7  Sup.  Ct.  Rep. 
Co.  V.  New  Orleans  Gaslight  Co., '27  405;  New  Orleans  W.  W.  Co.  v. 
La.  Ann.  138;  Bridge  Proprietors  v.  Ernst,  32  Fed.  Rep.  5, 
Hoboken,  1    Wall.   116;   Binghamton 


494  OIL    AND    GAS. 

of  men  are  entitled  to  exclusive,  sc])arate  emoluments  or  privi- 
leges from  the  community,  but  in  consideration  of  public 
services."  In  1838  a  charter  was  granted  to  a  gas  company; 
and  in  1850  the  legislature  provided  that  thereafter  "  all  char- 
ters and  grants  of  and  to  corporations,  or  amendments  thereof, 
shall  be  subject  to  amendment  or  repeal  at  the  will  of  the  legis- 
lature, unless  a  contrary  intent  be  therein  expressed.''  In  1869 
this  charter  of  1838  was  amended,  granting  to  a  gas  company, 
in  such  amendment,  an  exclusive  right  to  occupy  the  streets  of 
Louisville.  In  1872  another  statute  was  passed  authorizing 
another  gas  company  to  lay  its  pipes,  with  the  consent  of  the 
city  council,  in  the  streets,  and  to  furnish  gas  to  its  inhabitants. 
This  latter  Act  was  li*ld  void,  because  it  was  clear  that  the  Act 
of  1860  gave  the  company  the  right  to  continue  to  enjoy  the 
franchise  it  then  possessed  for  the  term  therein  named  v/ithout 
being  subject  to  have  its  charter  in  that  respect  amended  or 
repealed  at  the  will  of  the  legislature.^^  In  ]\Iissouri  one  of 
the  Appellate  Courts  drew  a  distinction  between  the  power  of 
the  legislature  to  authorize  a  gas  company  to  occupy  streets  to 
the  exclusion  of  others,  and  the  power  to  authorize  an  exclu- 
sive right  to  vend  gas  for  the  same  time  in  a  city  —  holding 
the  former  a  valid  grant,  and  the  latter  void,  because  prohibited 
both  by  the  common  law  and  by  a  clause  in  the  constitution  pro- 
hibiting the  granting  of  special  privileges.^" 


31  Louisville  Gas  Co.  v.  Citizens'  tutional  provision  abrogate  the  ex- 
Gas  Co.,  115  U.  S.  683;  6  Sup.  Ct.  elusive  clause  in  the  franchise  of  a 
Rep.  265;  reversing  81  Ky.  263.  water  company;  and  in  such  an  in- 
See  Hovelman  v.  Kan  -is  City  Horse  stance  a  city  cannot  insist  on  fur- 
K.   R.   Co.,    79   Mo.    632.             *'  nishing   the    water   under    the    plea 

32  St.  Louis  Gaslight  Co.  v.  St.  that  it  will  furnish  a  purer  and 
Louis,  etc.,  Co.,  16  Mo.  App.  52.  more    suitable    supply.       St.     Tam- 

An    ordinance    for    the    laying   of  many    W.    W.    Co.   v.    New   Orleans 

pipes   in   certain   streets   is   not   in-  W.  W.  Co.,  120  U.  S.  64;  7  Sup.  Ct. 

validated  by  the  fact  that  pipes  of  Rep  405;  14  Fed.  Rep.  194. 

a    private    company    exist   on    some  But   see   Beinville   Water   Supply 

of  the  streets.     Hughes  v.  Momence,  Cd.  v.  Mobile    (U.  S.),   22  Sup.  Ct. 

163  HI.  535;   45  N.  E.  Rep.  300.  Rep.   1S20;   affirming  175  U.  S.   lOJ; 

A  State  cannot  even  by  a  consti-  20  Sup.  Ct.  Rep.  40. 


MONOPOLISTIC    GRAXTS    AND    CONTKACTS.  495 

§448.     Municipality  agreeing  not  to  compete  with  gas  company. 

A  municipality  may  bind  itself  not  to  compete  with  a  gas 
company  to  which  it  has  granted  a  right  to  furnish  gas  to  it 
and  its  inhabitants,  by  agreeing  in  the  gTant  not  to  engage  in 
furnishing  gas  as  a  municipal  enterprise  for  a  named  period. 
But  it  may  well  be  doubted  if  it  could  thus  bind  itself  in  per- 
petuity. Thus  in  the  State  of  Washington  a  city  was  chartered 
by  a  special  Act  of  the  legislature,  and  was  authorized  to  issue 
its  bonds,  not  to  exceed  fifty  thousand  dollars  in  amount,  to 
build  water  works,  or  to  authorize  a  company  to  build  them. 
The  city  authorized  a  company  to  put  in  a  water  works  system, 
upon  the  condition  that  it  would  furnish  free  water  for  city 
hydrants  and  for  flushing  the  sewers ;  and  agreed  to  not  build 
water  works  of  its  own  for  twenty-five  years.  It  was  also  pro- 
vided that  if  the  service  of  the  company  should  prove  unsatis- 
factory, the  city  might  apply  to  the  courts  to  secure,  for  suffi- 
cient cause,  a  revocation  of  the  grant.  After  the  company  had 
constructed  its  works  and  for  several  years  had  supplied  water, 
Avithout  securing  a  revocation  of  its  grant,  it  submitted  the  ques- 
tion, pursuant  to  a  general  statute,  to  the  people  whether  or  not 
it  should  build  water  works  on  its  o\\m  account;  and  the  vote 
being  favorable  to  the  building  of  them,  enacted  an  ordinance 
for  their  construction,  and  provided  for  an  issue  of  one  hun- 
dred and  sixty  thousand  dollars  of  bonds  for  that  purpose.  The 
court  restrained  the  city  from  entering  upon  the  enterprise  of 
building  its  own  water  works,  holding  that  so  long  as  the  first 
grant  remained  unrevoked  it  could  not  do  so ;  and  that  the  con- 
tract not  to  engage  in  a  competitive  work  of  supplying  gas  was 
binding  upon  the  city.^^  The  mere  grant  of  a  right  to  build  a 
gas  plant,  lay  pipes  in  the  street,  and  supply  the  city  and 
its  inhabitants  with  gas,  accompanied  by  contracts,  at  different 
times,  for  lighting  the  streets,  does  not  prevent  the  city,  when 
such  contracts  are  at  an  end,  building  its  ovm.  gas  plant  and 
supplying  itself  and  its  inhabitants  with  gas;  and  that,  too,  even 

33  Walla  ^Yalla  v.  Walla  Walla 
Water  Co..  172  U.  S.  1 ;  19  S.  Ct. 
Rep.  77,  affirming  GO  Fed.  Rep.  957- 


496  OIL    AND    OAS. 

though  the  city  had  several  times  fixed  the  price  of  gas,  under 
a  statute,  at  which  it  should  be  sold  to  the  inhabitants  of  the 
cit}'."''  And  a  statute  providing  that  when  any  existing  com- 
pany refuses  to  extend  its  lines,  make  connections,  or  perform 
certain  other  duties  when  required  to  do  so  by  the  municipal 
authorities,  its  charter  should  be  forfeited,  and  the  city  be  at 
liberty  to  establish  and  maintain  gas  works  of  its  o^\^l,  passed 
after  the  company  had  been  gTanted  a  franchise,  does  not  impair 
the  obligation  of  contracts,  within  the  meaning  of  the  Federal 
Constitution,  although  the  value  of  the  existing  company's  fran- 
chise is  diminished  by  the  city's  erecting  its  own  works.^^  The 
fact  that  the  city  owns  its  own  gas  works  does  not  enable  it  to 
prevent  a  gas  company,  having  the  right  to  do  so,  from  extend- 
ing its  mains  and  su|fplying  gas  to  the  city's  inhabitants  at  a 
rate  below  that  at  which  the  city  can  manufacture  and  supply 
it,  thereby  rendering  its  enterprise  a  losing  one."'**  It  has  been 
sometimes  held  that  statutes  were  so  peculiar  in  their  terms 
that  a  municipality  could  not  engage  in  the  enterprise  of  fur- 
nishing water,  where  it  had  granted  the  right  to  a  private  cor- 
poration, even  though  such  grant  was  not  an  exclusive  one. 
Such  is  a  case  already  cited."  In  ISTew  York  a  case  arose  which 
rests  on  such  a  statute  —  a  very  peculiar  statute.  In  that  State 
it  has  been  decided  that  the  fact  of  a  municipality  granting  t  t 
a  water  company  the  right  to  furnish  the  city  and  its  inhabitant  , 
water,  containing  no  grant  of  an  exclusive  character,  did  nc  ', 
prevent  it  from  making  the  same  kind  of  a  grant  to  anothet 
water  company;  ^^  and  that  rule  is  adhered  to  in  the  case  nov! 

34  state  V.  Hamilton,  47  Ohio  St.  North  Springs  Water  Co.  v.  Taco- 
52;  23  N.  E.  Rep.  935;  29  Am.  and  ma,  21  Wash.  517;  58  Pac.  Rep. 
Eng.   Corp.   Cas.  208;    Westerly   W.       773;  47  L.  R.  A.  214. 

W.    Co.   V.   Westerly,    80    Fed.   :^ep.  36  Hamilton  v.  Hamilton  Gaslight 

611;  75  Fed.  Rep.  181;  76  Fed.  Rep.  Co.,    11    Ohio   Dec.    513. 

467;   Helena  v.  Helena   W.   W.  Co.,  37  See  the  case  of  White  v.  Mead- 

122  Fed  Rep.  1.  ville,   supra.     See   Welsh   v.   Beaver 

35  Hamilton    Gaslight    and    Coke  Falls   (Pa.),  40  Atl.  Rep.  784. 

Co.  V.  Hamilton,  146  U.  S.  258;   13  38 /^    re    City    of    Brooklyn,    143 

Sup.  Ct.  Rep.  90;  affirming  37  Fed.  N.  Y.   596;   38  IT.  E.  Rep.  983;   26 

Rep.    832;     State   v.    Hamilton,    47  L.  R.  A.  270;  Syracvise  Water  Co.  v. 

Ohio    St.    52;    23   N.    E.    Rep.   9.'?5;  Syracuse.   116  N.  Y.  167;   22  N.  E. 

29   Am.   and   Eng.   Corp.   Cas.    208;  Rep.  381;  5  L.  R.  A.  546;  Power  v. 


MONOPOLISTIC    GRANTS    AND    CONTRACTS.  497 

under  discussion.  A  village  gave  a  non-exclusive  franchise  to  a 
^vater  company  to  construct  a  water  system.  After  the  ex- 
piration of  the  franchise,  the  village  did  not  purchase  the  sys- 
tem, as  the  law  provided  it  might,  but  began  the  construction 
of  its  own  system  under  a  statute  which  authorized  it  to  levy 
a  tax  where  the  net  water  receipts  were  insufficient  to  pay  the 
indebtedness  incurred  in  building  the  system  when  due,  and  to 
"  establish  a  scale  of  water  rates  for  the  use  of  water  and  also 
rates  for  the  fire  protection  to  be  assessed  on  all  real  property 
abutting  on  the  mains  or  within  two  hundred  feet  of  the  hy- 
drants, or  on  such  real  property  so  abutting  or  within  said 
distance  as  such  boards  may  deem  beneficial,  upon  which  real 
property  the  water  is  not  used,  by  the  o^\^ler  or  occupant 
thereof  for  domestic  or  manufacturing  purposes."  After  the 
work  of  constructing  a  municipal  plant  was  begim,  the  existing 
private  water  company  brought  suit  to  enjoin  its  construction, 
claiming  that  the  above  section  was  invalid ;  and  the  court  sus- 
tained its  claim.  The  basis  of  the  decision  was  that,  if  the 
net  receipts  were  not  sufficient  to  pay  the  debt  incurred  in 
putting  in  the  plant,  the  village  had  the  power  to  tax  the  pri- 
vate company's  plant  and  all  its  consumers  of  water ;  but  if  such 
consumers  would  abandon  it,  and  take  water  from  the  village 
"  for  domestic  or  manufacturing  purposes,"  then  their  proper- 
ties were  exempt  from  the  tax.  The  court  regarded  this  as  such 
an  unfair  provision  that  it  violated  that  provision  in  the  Fed- 
eral Constitution  prohibiting  a  State  impairing  the  obligation 
of  a  contract.^® 

Athens,  99  X.  Y.  592;  2  X.  E.  Rep.  by    implication.     Tj-rone    Gas    and 

609.  Water    Co.   v.   Tyrone,    195    Pa.    St. 

39  Skaneateles   Water    Works    Co.  566;   46  Atl.   Rep.   134. 

V.   Skaneateles,    161   N.   Y.    154;    55  If  a  gas  company  has  the  exclu- 

N.  E.  Rep.  562;  affirming  33  N.  Y.  sive  right  to  furnish  gas  to  a  city, 

App.  Div.  642;  54  N.  Y.  Supp.  1115.  it  may  maintain  a  bill  to  restrain 

See  Warsaw  W.  W.  Co.  v.  Warsaw,  the   city  proceeding  under   its  gen- 

16   N.  Y.  App.   Div.  502;   44   N.  Y.  eral  powers  to  build  a  plant.     Gas 

Supp.  876.  and    Water   Co.   v.   Dowington,    175 

The  contract  of  a  city  not  to  con-  Pa.   St.   341;    38  W.  X.  C.  376;    34 

struct  a  plant  of  its  own  may  arise  Atl.  Rep.  799.     See  Southwest  Mis- 


498  OIL    AND    GAS. 

§449.     Legislature  may  not  authorize  monopolistic  grants. 

j^otwithstanding  what  has  been  said  in  the  former  sections, 
there  are  quite  a  number  of  cases  which  hold  that  the  legislature 
cannot  itself,  nor  authorize  a  municipality  to  grant  an  exclusive 
franchise,  nor  even  enter  into  a  contract  with  a  gas  or  water 
company  to  take  gas  or  water  from  it  for  a  long  period  of  years 
and  agree  to  exclude  all  competitors.  Such  gi-ants  or  contracts 
are  held  to  create  such  a  monopoly  as  the  usual  clause  in  a  con- 
stitution against  monojx)lies  prohibits,'*'*  The  granting  of  an 
exclusive  right  of  way  to  lay  pipes  in  the  streets  or  highways 
is  void  under  the  Texas  constitution.*^ 

§450.    Estoppel   to   co4test  validity   of   monopolistic   grant.  — 
Ratification. 

A  municipality  is  not  estopped  to  deny  the  validity  of  a 
monopolistic  grant  or  contract;  for  to  allow  an  estoppel  to  be 
successfully  pleaded,  would  be  to  bind  the  corporation  by  a 
grant  or  contract  it  had  no  power  to  make.  A  city  or  town 
being  a  public  corporation,  those  who  contract  with  it  are  as 

souri  Light  Co.  v.  Joplin,  113  Fed.  monopolies.     Edwards     County     v. 

Rep.  817.  Jennings,    89    Tex'.    618;    .35    S.    W. 

A  city  cannot  insist  on  furnishing  Rep.  1053;  33  S.  W.  Rep.  585;  Da- 
water,  to  the  exclusion  of  a  water  venport  v.  Kleinschmidt,  6  Mont, 
company,  under  the  plea  that  it  will  502;  13  Pac.  Rep.  249;  Minturn  v. 
furnish  a  purer  and  more  suitable  La  Rue,  23  How.  435  (a  ferry 
supply.  St.  Tammany  W.  W.  Co.  right)  ;  Long  v.  Duluth,  49  Minn. 
V.  Xew  Orleans  W.  W.  Co.,  120  U.  280;  51  N.  W.  Rep.  913;  Atlantic 
S.  64;  7  Sup.  Ct.  Rep.  405;  14  Fed.  City  W.  W.  Co.  v.  Consumers'  Wa- 
Rep.    194.  ter  Co.,  44  N.  J.   Eq.  427;    15   Atl. 

4o  Brenham  v.  Brenham  Water  Rep.  581;  diametrically  opposed  to 
Co.,  67  Tex.  542;  4  S.  W.  Rep.  ^43;  Atlantic  City  W.  W.  Co.  v.  Atlan- 
Janeway  v.  Duluth,  65  Minn.  292;  tic  City,  48  N.  J.  L.  378. 
68  >s.  W.  Rep.  243.  See  Des  Moines  4i  Edwards  County  v.  Jennings, 
Gas  Co.  V.  Des  Moines,  44  Iowa  505.  80  Tex.  618;  35  S.  W.  Rep.  1053; 
In  Bartholomew  v.  Austin,  85  Fed.  affirming  33  S.  W.  Rep.  585.  See 
Rep.  359;  52  U.  S.  App,  512;  29  People  v.  Bowen,  30  Barb.  24;  af- 
C.  C.  A.  568,  the  United  States  firmed  21  X.  Y.  517;  Elmira  Gas- 
Court  of  Appeals  disapprove  of  this  light  Co.  v.  Elmira,  2  Ala.  L.  Jr. 
case  in  passing  upon  the  clause  in  392. 
the    constitution    of    Texas    against 


MONOPOLISTIC  GRANTS  AND  CONTRACTS.        499 

much  bound  to  know  its  powers  and  limitations  as  its  inhab- 
itants and  officers ;  so  that  it  cannot  be  successfully  said  that 
those  contracting  with  it  were  in  ignorance  of  its  power  to  bind 
itself  or  were  misled  by  the  representations  of  its  officers.*" 
Silence  for  five  years  without  taking  any  action  to  purchase 
the  plant  under  a  contract,  as  it  had  a  right  to  do,  or  by  use 
of  the  water  for  town  purposes,  or  a  vote  of  the  town  to  notify 
the  company  of  an  intention  to  purchase  its  ])lant,  or  all  these 
together  will  not  estop  the  city  so  as  to  prevent  it  setting  up  the 
invalidity.*'*  So  a  clause  in  a  company's  charter  granting  it  the 
right  to  lay  its  pipes  in  the  streets  of  a  certain  town  for  an 
indefinite  period,  but  not  granting  to  or  recogTiizing  any  au- 
thority in  the  town  council  to  make  an  exclusive  grant  of  a 
right  therein,  will  not  constitute  a  ratification  of  an  unauthor- 
ized exclusive  grant  made  by  it.**  And  the  fact  that  the  company 
has  used  the  streets  for  twenty  years,  even  under  permission  of 
the  city  council,  will  not  prevent  the  court  from  inquiring  into 
its  right  to  an  exclusive  use  of  the  streets,"  and  the  fact  that 
others  have  not  exercised  a  similar  right  does  not  make  the  com- 
pany's uses  the  exercise  of  a  right  to  exclude  others.*^ 

§451.     A  federal  question. 

The  granting  of  a  second  or  other  franchise  impairing  the 
benefit  given  by  an  earlier  franchise,  or  its  revocation,  raises  a 
question  under  the  Constitution  of  the  United  States  giving  the 
Federal  courts  jurisdiction  when  properly  raised.*" 

42  Smith  V.  Westerly,  19  R.  I.  pany  for  a  long  time  is  estopped 
437 ;    35  Atl.   Rep.   526.  to  set  up  the  invalidity  of  such  com- 

43  Westerly  W.  W.  Co.  v.  West-  pany's  organization.  Wyandotte 
erly,  80  Fed.  Rep.  611.  See  West-  Electric  Light  Co.  v.  Wyandotte, 
erly  W.  W.  Co.  v.  Westerly,  75  Fed.  124  Mich.  43;  82  N.  W.  Rep.  821; 
Rep.    181;    76   Fed.   Rep.    467.  Atlantic   City   W.   W.   Co.    v.   Reed, 

44  Smith    V.    Westerly.     19    R.    I.  50  N.  J.  L.  605;   15  Atl.  Rep.  10. 
437;    35   Atl.    Rep.    526.  46  Walla   Walla   v.    Walla   Walla 

45  State  V.  Cincinnati,  etc.,  Co.,  Water  Works  Co.,  172  U.  S.  1 ;  19 
18  Ohio  St.  262;  Cincinnati  Gas-  Sup.  Ct.  Rep.  77;  Logansport,  etc.. 
light  and  Coke  Co.  v.  Avondale,  43  Gas  Co.  v.  Peru,  89  Fed.  Rep.  185; 
Ohio  St.  257;   1  N.  E.  Rep.  527.  Southwestern  Missouri  Light  Co.  v. 

A   city   dealing  with   a   gas   com-       Joplin,    113    Fed.   Rep.    817. 


500  OIL    AXD    GAS. 

§452.     Monopolistic  clause  does  not  avoid  whole  contract. 

A  clause  to  furnish  gas  or  water  in  which  is  an  objectionable 
monopolistic  clause  will  not  avoid  the  whole  contract.  The 
agreement  to  pay  for  the  gas  or  water  remains  in  force  and  the 
city  or  town  entering  into  the  contract  is  bound  thereby.*^ 

§453.     Enjoining  passage  of  ordinance. 

A  court  has  no  power  to  enjoin  the  passage  of  an  ordinance 
granting  to  a  second  company  a  franchise  which  is  a  direct  vio- 
lation of  a  previous  grant  made  by  it,  or  is  in  violation  of  a 
statute  giving  such  an  exclusive  franchise.  The  court  will  wait 
until  a  contest  may  aAje  between  the  claimants  under  the  two 
franchises  or  in  some  other  way  arising  after  the  ordinance  has 
been  enacted.*^ 

§454.     Forfeiture  of  exclusive  franchise. 

A  gas  or  water  company  given  an  exclusive  privilege  to  sup- 
ply a  city  with  gas  or  water  will  lose  such  privilege,  so  far  as  it 
is  exclusive,  unless  it  complies  with  the  duty  imposed  upon  it 
to  furnish  gas  or  water.  It  must  provide  adequate  mains  for 
ihe  delivery  of  gas  or  water  to  all  parts  of  the  city  in  sufficient 
quantities  for  the  wants  of  the  inhabitants ;  not,  however,  being 
comjD€lled  to  enter  those  regions  where  the  number  of  consumers, 
and  where  public  lights  or  water  are  not  needed,  or  will  be  so  few 
as  to  make  the  cost  of  supplying  them  out  of  all  proportion  to 
the  amount  of  the  income  derived  from  the  sale  of  gas  or  water.*" 
And  before  a  court  will  protect  it  in  its  exclusive  franchise  it 

47  Illinois  Trust  and  Savings  Bank  Moines,    44  *  la.    505;    Montgomery 

V.  Arkansas  City,  76  Fed.  Rep.  271;  Gaslight  Co.  v.  Montgomery,  87  Ala. 

40  U.  S.  App.  257;  22  C.  C.  A.  171;  245;    6    So.    Rep.    113;    4    L.    R.    A. 

34   L.    R.   A.    518;    Jackson   County  616. 

Horse  Ry.   Co.   v.    Interstate   Rapid  4o  New  Orleans  Water  \Yorks  Co. 

Transit  R.  R.  Co.,  24  Fed.  Rep.  306;  v.  Rivers,  115  U.  S.  074;  6  Sup.  Ct. 

Levis  V.  Newton,  75  Fed.  Rep.  884.  Rep.  273;   New  Orleans  W.   W.  Co. 

48Des    Moines    Gas    Co.    v.    Des  v.  Ernst,   32  Fed.  Rep.  5. 


MONOPOLISTIC    GEAXTS    AND    CONTRACTS.  501 

must  show  some  honest  and  active  efforts  to  assert  and  exercise 
the  right  claimed  by  it.^° 

§455.  Exclusive  franchise  for  artificial  gas  does  not  exclude 
natural  gas. 
We  have  an  illustration  how  strictly  an  exclusive  franchise  is 
construed  in  several  natural  gas  cases.  Thus  an  early  statute 
in  a  State  authorized  the  giving  to  a  corporation  the  exclusive 
right  to  supply  a  town  with  gaslight,  and  to  erect  the  necessary 
buildings  to  manufacture  and  distribute  the  gas.  It  was  held 
that  this  exclusive  franchise  did  not  prevent  the  town  giving  to 
a  natural  gas  company  the  right  to  furnish  gas,  although  such 
company  would  supply  gas  for  lighting  purposes."' 

§456.     Extension  of  time   for  completion  of  work.     Additional 
requirements. 

If  a  gas  or  water  company  fails  to  complete  the  works  it  has 
undertaken,  in  compliance  with  the  requirements  imposed  upon 
it  by  the  city,  such  city  may  impose  additional  terms  or  exact 
additional  requirements  in  extending  the  time  for  the  comple- 
tion of  such  works.^" 

50  It  will  not  be  permitted  to  copy  529;  18  Pa.  Co.  Ct.Rep.  223;  John- 
the    conduct    of    the    "dog    in    the  ston  v.  People's,  etc.,  Gas  Co.  (Pa.), 
manger."      Scranton    Electric   Light  7  Atl.  Rep.  167;  5  Cent.  Rep.  564. 
and  Heat  Co.  v.  Scranton,  etc.,  Co.,  For   analogous   cases,   see  Malone 
3  Pa     Co.  Ct.  Rep.  628.  v.  Lancaster,   etc.,  Co.,   182  Pa.  St. 

51  Warren  Gaslight  Co.  v.  Penn-  309;  40  W.  R.  C.  434;  1.5  Nat.  Corp. 
svlvania  Gas  Co..  161  Pa.  St.  510;  Rep.  98;  14  Lane.  L.  Rev.  321;  3/ 
29  Atl.  Rep.  101;  Hagan  v.  Fay-  Atl.  Rep.  932;  Wilkes-Barre  Light 
ette  Gas-Fuel  Co.,  21  Pa.  Co.  Ct.  Co.  v.  Wilkes-Barre.  etc.,  Co.  (Pa.), 
Rep  503;  29  Pittsb.  Leg.  J.  (X.  S.)  4  Kulp  47:  Emmerson  v.  Common- 
wealth. 108  Pa.  St.  Ill;   Carother's 


229. 


\    charter   to   "manufacture   and  Appeal.    118    Pa.    St.    468;    12    Atl. 

sell  calcium  carbide  and  its  product.  Rep.  314;    11  Cent.  Rep.  48;   Sterl- 

and   purposes   incident   thereto   and  ing's    Appeal.    Ill    Pa.    St.    35;    2 

connected  therewith,"  does  not  come  Atl.  Rep.  105;  2  Cent.  Rep.  49  r  In  re 

in  conflict  with    one  giving  an   ex-  Johnston    (Cal.).  69  Pac.  Rep.  9.3. 

elusive   franchise  for  the  supply  of  52  Eureka  Light-Ice    Co.   v.  Eure- 

gaslight.     Lebanon  Gas  Co.  v.  Leb-  ka.  5  Kan.  App.  669;  48  Pac.  Rep. 

anon  Fuel,  etc.,  Co.,  5  Pa.  Dist.  Rep.  935. 


502  OIL    AST)    GAS. 

§457.     Gas  works  built  under  void  grant  or  franchise. 

Ill  a  iiuiiiIk'i-  of  instances  gas  and  water  works  have  been  built 
under  contracts  with  municipalities  extending  exclusive  rights 
to  furnish  gas  or  water  for  the  city  and  its  inhabitants,  sonic- 
times  in  perpetuity,  but  usually  for  a  long  term  of  years;  and 
under  these  gTaiits  the  companies  have  gone  on  at  a  great  ex- 
pense, built  their  works,  bonded  them,  and  furnished  gas  or  wa- 
ter for  several  years,  before  the  question  of  validity  of  the  grant 
or  franchise  was  raised.  Usually  the  question  in  such  instances 
is  raised  in  a  suit  against  the  municipality  to  recover  pay  for 
gas  or  water  furnished,  and  then  it  is  quickly  settled,  the  court 
holding  that  in  such  an  instance  the  validity  of  the  grant  can- 
not be  litigated.^"  Bilt  in  other  instances  where  the  question 
is  ])roperly  raised  the  courts  will  not  hold  the  contract  void 
until,  at  least,  after  a  reasonable  time  has  expired  after  it 
was  made,  especially  where  the  municipality's  conditions  have 
not  changed  as  to  population  and  assessed  valuation,  where 
no  better  facilities  are  offered  upon  more  reasonable  terms,  and 
where  the  company  would  suffer  irreparable  loss.^* 

§458.     Municipality's  right  to  purchase  existing  works  is  optional. 

Statutes  frequently  give  municipalities  the  power  to  purchase 
from  a  private  company  putting  in  works  under  contract  with 
them,  its  plant,  and  providing  machinery  to  determine  the  price 
that  shall  be  paid.  Usually  in  all  cases  it  is  entirely  optional  with 
the  municipalities  to  purchase  these  plants.^^     In  such  instances 

53  state  V.  Great  Falls,  19  Mont.  158;  Morristown  v.  East  Tennessee, 
518;  49  Pac.  Rep.  15;  Sandy  Lake  etc.,  Co.,  115  Fed.  Rep.  304;  Bein- 
V.  Sandy  Lake,  etc..  Gas  Co.,  16  Pa.  ville  Water  Supply  Co.  v.  Mobile 
Sup.  Ct.  Rep.  234.  (U.  S.).  22  Sup.  Ct.  Rep.  820;   af- 

54  Columbus  Water  Co.  v.  Col«m-  firming  175  U.  S.  109;  20  Sup.  Ct, 
bus,  48  Kan.  378 ;  29  Pac.  Rep.  762 ;  Rep.    40. 

15  L.  R.  A.  354;  Illinois  Trust  and  55  Skaneateles  Water  Works  Co.  v. 

Savings  Bank  v.  Arkansas  City,  76  Skaneateles,    161  N.   Y.   154;    55  N. 

Fed.  Rep.  271 ;   40  U.  S.  App.  257;  E.  Rep.  562;  affirming  33  N.  Y.  App. 

22  C.  C.    A.   171:    34  L.  R.-  A.  51S;  Div.    642;    .54    N.    Y.    Supp.    1115; 

Anoka    W.    W.,    etc.,    Co.    v   Anoka,  Crescent  City  Gaslight  Co.  v.   New 

109     Fed.     Rop.     580,     bondholder's  Orleans   Gaslight   Co.,   27   La.  Ann. 

rights.    See  Madison  v.  Morristown,  138. 
etc.,  Co.    (N.  J.   Ch.),   52  Atl.  Rep. 


MOXOPOLISTIC    GEAXTS    AXD    CONTRACTS.  503 

the  city  must  exercise  its  option  at  the  time  designated  in  the 
contract.  If  the  price  to  be  paid  is  to  be  settled  by  arbitrators 
to  be  chosen,  one  by  the  city  and  the  other  by  the  company,  for 
instance,  the  city  cannot  insist  that  the  company  enter  into  an 
arbitration  before  such  city  has  determined  to  exercise  its  option 
and  buy  the  works.  If  the  company  refuse  to  select  an  arbi- 
trator, the  city  may  insist  that  it  has  forfeited  its  franchise, 
especially  is  this  true  where  the  grant  is  illegal  because  it  is 
an  exclusive  one.^*' 

§459.     Unlawful  combinations  between  gas  companies. 

Combinations  between  two  gas  or  lighting  companies  some- 
times assume  monopolistic  features  and  are  void.  Thus  an 
agreement  between  two  companies  that  neither  would  furnish 
gas  to  the  consumers  of  the  other  is  void,  and  furnishes  a  basis 
for  a  monopoly ;  and  because  of  that  fact  the  courts  may  de- 
clare their  franchises  forfeited.^^  So  much  so  is  a  contract  of 
this  character  void  that  a  person  undertaking  to  secure  an  agree- 
ment between  two  companies  to  divide  the  territory  of  the  city 
between  them,  and  the  one  not  to  compete  in  the  territory  as- 
signed to  the  other,  cannot  recover  for  his  services.^* 

§460.     Granting  privilege  to  use  streets  does  not  require  a  general 
ordinance  —  general  ordinance  regulating  streets. 

A  municipal  authority,  however,  whether  it  is  forbidden  or 
not  empowered  to  give  an  exclusive  grant  to  a  gas  company  to 

56  Montgomery  Gaslight  Co.  v.  Rep.  1089;  53  L.  R.  A.  413;  74  Am. 
Montgomery,  87  Ala.  372;  5  So.  St.  Rep.  314;  Consumers'  Oil  Co.  v. 
Rep.  735;  4  L.  R.  A.  616.  Nunnemaker.  142  Ind.  560;  41  N.  E. 

The  bringing  of  a  suit  for  the  Rep.  1048;  51  Am.  St.  Rep.  193; 
appointment  of  commissioners  to  as-  Gibbs  v.  Consolidated  Gas  Co.,  130 
sess  the  value  of  the  property  to  be  U.  S.  396;  9  Sup.  Ct.  Rep.  553; 
purchased  by  the  city  is  sufficient  Chicago  Gaslight  and  Coke  Co.  v. 
evidence  of  a  dispgreement  between  People's  Gaslight  and  Coke  Co.,  121 
the  company  and  the  city  as  to  the  111.  530;  13  X.  E.  Rep.  169;  Pitts- 
value  of  such  property.  Braintree  burgh  Carbon  Co.  v.  Philadelphia 
Water  Supply  Co.  v.  Braintree,  146  Co.,  130  Pa.  St.  438;  18  Atl.  Rep. 
Mass.  482;   16  N.  E.  Rep.  420.  732. 

57  State  V.  Portland  Natural  Gas  ss  Gibbs  v.  Consolidated  Gas  Co., 
and  Oil  Co.,  153  Ind.  483;  53  N.  E.  130  U.  S.  396;  9  Sup.  Ct.  Rep.  553. 


504  OIL    AND    GAS. 

use  its  streets,  may  practically  achieve  the  same  end,  by  grant- 
ing to  a  special  company  the  right  to  use  its  streets,  and  refrain- 
ing from  granting  it  to  others.  Such  action  of  the  municiiDality 
is  not  void,  nor  does  it  violate  any  clause  of  a  constitution  or 
statute  forbidding  the  granting  of  special  privileges.  Speaking 
of  an  ordinance  of  this  character,  the  Supreme  Court  of  Indiana 
said :  ""It  does,  it  is  true,  gTant  a  right  to  use  the  streets  of  the 
town,  but  it  does  not  exclude  their  use  by  competing  companies. 
It  does  not  throttle  competition,  for  it  merely  grants  a  license 
to  use  the  streets.  It  cannot  be  held  that  permission  to  one 
company  to  use  the  streets  excludes  others ;  on  the  contrary,  the 
grant  of  such  a  license  leaves  plenary  power  in  the  municipality 
to  grant  licenses  to  rival  companies  at  any  time.  A  licensee 
wdio  obtains  a  right  to  use  streets  does  not  obtain  a  monopoly. 
The  right  to  grant  other  license  remains  open  and  unobstructed. 
Not  only  does  the  right  to  license  other  companies  remain  open, 
but  the  right  to  prescribe  reasonable  police  regulations  by  a 
general  ordinance  also  remains  unimpaired.  A  private  corpora- 
tion that  obtains  a  license  to  use  the  streets  of  a  municipality 
takes  it  subject  to  the  power  of  the  municipality  .to  enact  a  gen- 
eral ordinance ;  for  a  governmental  power,  such  as  that  exercised 
in  enacting  police  regulations,  cannot  be  surrendered  or  bar- 
tered away  even  by  express  contract.  But  there  is  here  no 
attempt  to  surrender  or  barter  aAvay  this  governmental  power, 
for  there  is  nothing  more  than  a  license  to  use  the  streets  of  the 
town.  .  ,  .  Where  a  municipality  attempts  to  regulate  the 
mode  of  using  its  streets  it  must  do  so  by  a  general  ordinance, 
but  it  does  not  follow  that  a  general  ordinance  is  essential  to 
the  validity  of  a  license  granted  to  a  designated  company.  It 
is  one  thing  to  sj^ecially  license  a  corporation  to  lay  pipes  in  a 
street  or  construct  electric  lines,  and  quite  another  to  regxilate 
I  the  entire  subject  of  supplying  light,  fuel,  or  the  like,  for  where 
the  munici])al  authorities  assume  to  legislate  upon  the  entire 
subject  a  general  ordinance  is  required;  but  where  they  simply 
grant  a  privilege  to  use  the  streets,  and  do  not  undertake  to  regu- 
late the  entire  subject,  a  general  ordinance  is  not  indispensably 
necessary  to   authorize   the   licensee   to   use   the   streets.     But 


MOA^OPOLISTIC    GEAXTS    AST)    COXTRxVCTS.  505 

neither  bv  a  general  ordinance  nor  by  a  special  license  can  dis- 
criminations be  made  or  monopolistic  privileges  be  created. 
It  is,  however,  often  true  that  a  privilege  is  in  its  nature 
monopolistic,  and,  .  .  .  when  this  is  so,  the  grant  of  the 
franchise  is  of  necessity  the  part  of  monopolistic  right;  but  in 
such  a  case  the  corporate  grant  does  not  create  the  monopoly. 
In  this  instance  there  is  nothing  more  than  the  grant  of  a 
license ;  there  is  no  attempt  to  create  exclusive  privileges,  nor 
any  attempt  to  regulate  the  entire  subject.  The  rights  ac- 
quired under  a  mere  permissive  license  are  subject  to  control 
under  the  delegated  governmental  power  vested  in  the  munici- 
pality, for  no  licensee  can  acquire  rights  not  subject  to  regu- 
lation under  the  police  ix)wer  delegated  to  the  local  govern- 
mental instrumentalities.  We  have  here  no  question  of  con- 
tract rights,  for  the  question  presented  by  the  record  is  whether 
a  special  ordinance  granting  a  permissive  license  to  a  designated 
corporation  is  effective."  ^^  In  a  case  arising  in  the  Federal 
Circuit  Court  of  the  Eastern  District  of  Michigan  it  was  said : 
"  It  is  true  it  may,  in  effect,  gi'ant  such  exclusive  right  by  re- 
fusing to  any  other  company  the  franchise  or  privilege  it  has 
granted  to  one ;  but  this  presupposes  a  continued  and  abiding 
consent  on  the  part  of  the  city  to  keep  alive  its  contract,  and 
it  is  quite  distinct  from  the  right  of  the  city  to  surrender  its 
power  to  make  another  contract,  and  to  vest  in  the  plaintiff  the 
right  to  determine  for  itself  whether  a  rival  company  shall  be 
permitted  to  enter  its  domain."  '^'^ 

§461.     Contracts  for  light,  length  of  term. 

Another  kind  of  municipal  grants  or  contracts  having  in  them 
monopolistic  features  is  a  contract  to  furnish  a  municipal- 
ity all  the  light  it  needs  for  a  term  of  years.  These 
contracts  in  a  measure  are  exclusive  grants ;  for  l)y  them  the  gas 
companies  usually  have  the  right  for  a  term  of  years  to  supply 

59  Crowder   v.   Sullivan,    128    Ind.  go  Saginaw  Gaslight  Co.  v.   Sagi- 

486;  28  N.  E.  Rep.  94;   1.3  L.  R.  A.  naw.  28  Fed.  Rep.  529;  IG  Am.  and 

647.     See   also    State   v.    Cincinnati  Eng.  Corp.  Cas.  .562.     See  Garrison 

Gaslight  and  Coke  Co.,  18  Ohio  St.  v.    Chicago,    7    Biss.   480. 
262. 


506  OIL    AND    GAS. 

the  municipality  with  all  the  gas  or  light  it  needs  and  also  its 
inhabitants ;  and  frequently  they  contain  agreements  not  to  give 
similar  grants  to  other  compianies  while  the  contract  remains  in 
force.  A  case  of  this  character  arose  in  Indiana  where  it  has 
been  declared  that  a  municipality  cannot  give  an  exclusive 
grant  to  a  gas  company,  although  this  declaration  was  made 
many  years  after  the  case  here  referred  to  arose.  A  gas  com- 
pany was  empowered  by  its  legislative  charter  ''  to  manufacture 
and  sell  gas  .  .  .  for  the  purpose  of  lighting  "  a  certain 
city  or  its  streets,  "  and  any  buildings,  manufactories,  public 
places,  or  houses  therein  contained,"  "  for  the  term  of  twenty 
years."  The  same  charter  authorized  the  city,  "  in  its  corporate 
capacity  ...  to  contract  with  the  said  company  to  fur- 
nish gas  for  the  purpose  of  lighting  the  streets,  engine  houses, 
market  houses,  or  any  public  places  or  buildings,  and  may  pro- 
vide means  to  pay  for  the  same  in  such  manner  as  they  may 
deem  best."  The  general  law  for  the  incorporation  of  cities  of 
a  later  date  empowered  them  "  to  construct  and  establish  gas 
works,  or  to  regulate  the  establishment  thereof  by  individuals 
or  companies,  or  to  regulate  the  lighting  of  streets,  public 
grounds  and  buildings,  and  to  provide,  by  ordinance,  what  part, 
if  any,  of  the  expense  of  lighting  any  street  or  alley  shall  be 
paid  by  the  owners  of  lots  fronting  hereon."  In  1876  the  city 
entered  into  a  contract  with  a  gas  company,  in  the  form  of  an 
ordinance,  whereby  the  latter  agi-eed  to  furnish  gas  of  a  quality 
specified  in  an  ordinance  of  1866  for  the  supply  of  all  the  street 
lamps,  city  offices,  engine  houses,  and  all  other  places  where  gas 
was  required  for  the  use  of  the  city  in  its  corporate  capacity, 
in  consideration  of  an  agreed  compensation,  the  contract  to  be 
in  full  force  and  operation^for  the  term  of  five  years  from  its 
date,  and  a  further  term  of  five  years,  if  the  city  so  elected. 
It  was  agreed  that  this  contract  of  1876  should  not  be  taken  to 
alter,  modify  or  suspend  the  provision  of  a  contract  then  in  ex- 
istence between  them,  entered  into  by  them  in  1866  for  a  term 
of  twenty  years,  except  so  far  as  to  give  effect  to  its  terms ;  and 
when  the  contract  of  1876  terminated,  either  by  the  expiration 
of  the  time  limited,  or  by  the  failure  or  refusal  of  the  city  to 


MOiN^OPOLISTIC    GRAXTS    AXD    COXTEACTS.  507 

perform  its  part,  then  the  contract  of  1866  was  to  "  stand  and 
continue  for  the  parties  hereto  ...  in  all  respects  as 
though  this  contract  had  never  been  made."  The  city  had  the 
power  under  these  contracts  to  clean  and  repair,  at  the  com- 
pany's expense,  the  street  lamps  if  it  did  not ;  and  to  make 
certain  deductions  for  failure  to  light  lamps  and  keep  them 
burning.  The  city  denied  the  validity  of  the  contract  of  1876 ; 
but  the  court  upheld  it,  saying  that  it  was  undoubtedly  valid. 
Xo  discussion  was  entered  upon  concerning  the  contract  of  1866, 
but  it  seems  to  be  conceded  that  it  was  valid.  "■  By  the  con- 
tract we  are  considering,"  said  the  Supreme  Court,  ''  the  city 
of  Indianapolis  is  not  restricted  in  any  respect  from  the  legiti- 
mate exercise  of  its  public  powers  touching  the  subject  matter 
of  the  contract,  but  expressly  reserves  its  administrative  author- 
ity to  keep  the  posts,  lamps  and  burners  in  good  order  and 
repair,  if  the  gas  company  should  fail  to  do  so ;  and  also  re- 
serves the  right  to  test  the  quality  of  the  gas  furnished  by  the 
company,  and  the  capacity  of  the  burners,  at  all  times.  We 
cannot  see  wherein,  by  the  contract,  the  city  is  restricted  from 
extending  its  streets,  establishing  an  additional  number  of 
lamps  obtaining  gas  from  other  sources,  or  establishing  its  own 
gas  works,  as  the  public  interests  might  require,  and  all  this  it 
can  do  without  violating  its  contract.  Xo  exclusive  right  is 
granted  to  the  gas  company."  ®^      It  will  be  observed  that  in  this 

61  Indianapolis     v.     Indianapolis,  upon  between  Gale  and  the  lessees, 

etc.,   Co.,   66   Ind.   396.  the  rent  to  be  paid  to  him,  and  the 

The  court  called  attention  to  the  contract  to  run  ten  years.  The  vil- 
case  of  Garrison  v.  Chicago,  7  Biss.  lage  was  to  appoint  a  manager  of 
480,  relied  upon  by  the  city,  where  the  market,  and  there  was  to  be  no 
a  ten-year  contract  was  declared  oflier  market  house  in  the  village, 
void,  to  the  fact  that  it  had  been  and  no  marketing  elsewhere  during 
declared  void  because  no  appropria-  market  hours.  "  The  vice,"  said  the 
tion  for  it  had  been  previously  made  Indiana  court,  "  of  this  contract  lay, 
as  the  city  charter  expressly  re-  not  in  its  agreement  to  have  a  mar- 
quired.  The  court  also  pointed  out  ket  house  built,  but  in  the  fact  that 
that  the  case  of  Gale  v.  Kalamazoo,  the  public  authorities  had  under- 
23  Mich.  344,  was  an  instance  where  taken  to  part  with  their  control  over 
the  city  has  authorized  Gale  to  build  it  when  built,  and  place  its  man- 
a  market  house,  to  be  put  under  agement  in  the  power  of  private 
the  control  of  the  city  authorities,  speculators.  This  they  could  not 
the    stalls    to    be    rented   as   agreed  do." 


508  OIL    AND    GAS. 

case  the  court  held  the  five-year  contract  valid,  although  it 
was  devoid  of  the  exclusive  features  so  often  characteristic  of 
these  contracts,  such  as  the  contracts  of  18G6.  •  Statutes  fre- 
quently empower  cities  to  make  exclusive  contracts  with  gas 
and  water  companies,  for  a  certain  number  of  years,  and  these 
are  upheld  hy  the  courts ;  but  the  statutes  are  also  limitations 
upon  the  powers  of  cities,  for  the  limitation  therein  named  can- 
not be  exceeded;  but  if  the  attempt  is  made  to  exceed  that 
limit,  the  entire  contract  will  not  be  invalid  if  the  excess  can  be 
distinctly  separated  from  the  remainder  of  the  contract.  Thus 
where  a  statute  permitted  a  city  to  enter  into  a  contract  for 
twenty  years,  and  a  city  entered  into  a  contract  for  twenty 
years  with  a  provision  that  it  should  remain  in  force  for  an 
additional  twenty  years  if  the  city  had  not  purchased  the  works 
before  the  expiration  of  the  first  term,  the  contract  was  held 
valid  for  the  original  twenty  years.*'"  A  contract  for  thirty 
years  has  been  held  not  so  long  a  time  that  the  court  would 
say  as  a  matter  of  law  it  was  unreasonable.*'^  A  statute  em- 
powering a  municipality  to  contract  for  water  from  year  to 
year,  is  sufficient  to  uphold  a  contract  to  extend  for  twenty 
years  from  the  time  of  making  it.*'"*     A  contract  to  take  a  cer- 

62  Neosho  City  Water  Co.  v.  Ne-  required.      Lawrence    v.     Hennessy, 

osho,   136  Mo.  498;    38   S.   W.   Rep.  165  Mo.  659;  65  S.  W.  Rep.  71". 

89;  -State  v.   Laclede   Gaslight   Co.,  While     an     exclusive     grant     for 

102   Mo.   472;    14    S.    W.   Rep.    974;  twenty  years  is  void  so   far  as  the 

15  S.  W.  Rep.  383.     See  Manhattan  limit  is  concerned;  yet  the  company 

Trust  Co.  V.  Dayton,  59   Fed.  Rep.  under  it  have  the  right  to  put   its 

327;    16  U.  S.  App.  588.  pipes   in  the  street,   no   limit  being 

6  3  Oconto  City  Water  Supply  Co.  fixed    when    its    rights    shall    cease. 

V.  Oconto,    105   Wis.   76;    80  N.   W.  Hamilton  v.  Hamilton  Gaslight  Co., 

Rep.  1113;   Fergus  Falls  Water  Co.  11  Ohio  Dec.  513. 

V.  Fergus  Falls,  65  Fed.  Rep.  586;  In    the    following   cases    the    con- 

Des  Moines    etc.,   R.   R.   Co.  v.-»Des  tracts    were    held    invalid,    not    bc- 

Moines,  etc.,  Co.,  73  la.  513;   33  N.  cause  of  the  length  of  the  term,  but 

W.  Rep.  610;  35  N.  W.  Rep.  602  (25  because   the   city   had   no   power    to 

years ) .  execute      an      exclusive      contract : 

6-t  Light,   H.  and  W.  Co.  v.  Jack-  Long  v.  Duluth,  49  Minn.   280;    51 

son,  73  Miss.  598;   19  So.  Rep.  771.  N.  W.  Rep.  913    (30  years);   Bren- 

If  the  city  council   are  expressly  ham  v.  Brenham  Water  Co.,  67  Tex. 

authorized    to    grant    an    exclusive  542;  4  So.  W.  Rep.  143   (25  years)  ; 

privilege,  the  consent  of  the  people  Davenport  v.  Kleinschmidt,  6  Mont, 

of  the  city  to  such  franchise  is  not  502;    13   Pac.  Rep.  249    (25  years). 


MONOPOLISTIC    GRxVNTS    x\.ND    CONTRACTS.  509 

tain  amount  of  gas  for  a  special  period  of  time,  leaving  it  the 
unrestricted  right  to  either  manufacture  or  purchase  as  much 
as  it  desires,  is  not  a  monopolistic  contract,  and  is  not  invalid 
even  in  those  States  where  the  statute  or  constitution  prohibit 
exclusive  grants,  and  contracts,''^  The  rule  that  members  of  a 
legislative  bodv  of  a  city  may  not  so  act  or  contract  as  to  de- 
prive their  successors  of  the  unimpaired  governmental  or  legis- 
lative power  does  not  apply  to  the  exercise  of  the  business  or 
property  proprietary^  powers  of  the  city,  such  as  is  exercised  in 
entering  into  a  contract  for  gas  or  water/® 

§462.     Dating  contract  ahead. 

It  is  a  favorite  scheme  of  promoters  to  secure  an  exclusive 
right  to  occupy  the  streets  of  a  city  or  town  for  the  purjx)se  of 
speculation,  and  not  with  the  intention  of  themselves  putting 
in  a  plant,  unless  they  are  not  able  to  dis}>ose  of  the  rights  they 
have  obtained.  If  these  grants  do  not  require  completion  of 
the  works  for  several  years,  then  the  municipal  authorities  in 
office  have,  in  a  measure  at  least,  anticipated  and  exercised  the 
authoritv  of  future  officers  of  the  citv  or  town  —  a  thina:  neither 
the  legislature  nor  the  courts  are  dis|X)sed  to  sanction.  Courts, 
therefore,  are  inclined  to  construe  grants  giving  rights  to  occupy 
streets  and  maintain  plants  as  require  immediate  action  on  the 
part  of  the  grantees,  or  within  a  reasonable  time  thereafter. 
Thus  where  a  statute  provided  that  from  and  after  its  passage 
any  gas  company  should  have  the  power  to  extend  its  mains  or 
lay  its  pipes  for  conducting  gas  in  any  of  the  public  highways 
of  the  towns  where  located,  with  the  written  consent  of  the  pub- 
lic board  of  improvement,  and  under  such  reasonable  regulations 
as  it  might  prescribe,  it  was  held  that  when  such  a  company 

65  Vincennes  v.  Citizens'  Gaslight  grants    in    these    cases    forbade    the 

Co.,    132    Ind.    114;    31   N.   E.   Rep.  city  or  State  dealing  with  any  other 

573;    16   L.   R.   A.   485;    Valparaiso  person   or    company. 
V.  Gardner,  97  Ind.  1;  49  Am.  Rep.  6  6  Illinois  Trust  and  Savings  Bank 

416.     The   court    calls   attention   to  v.  Arkansas,   76  Fed.  Rep.  271;   22 

Davenport    v.    Kleinschniidt,    supra,  C.  C.  A.  171;  40  U.  S.  App.  257;  34 

and  Matter  of  Union  Eerry  Co.,  98  L.  R.  A.   518. 
N.  Y.  139,  by  pointing  out  that  the 


510  OIL    AND    GAS. 

seeks  to  extend  its  mains  or  lay  its  pijjes  it  was  the  duty  of 
such  board  to  then  exercise  its  judgment  as  to  whether  consent 
shall  be  given  ;  and  it  could  not  contract  in  advance  that  no  other 
could  have  its  consent  to  extend  its  mains  or  lay  its  pipes."^ 

c7Parfitt   V.    Furgnson,    3    N.    Y.       N.  Y.  Supp.  466;  159  N.  Y.  Ill;  53 
App.  176;  73  N.  Y.  St.  Rep.  621;  38       N.  E.  Rep.  707. 


CHAPTER  XXIII. 

STREETS  AND  HIGHWAYS. 

§463.  Definitions. —  Street  a  highway. 

§464.  Control  of  streets  or  highways. 

§465.  Use  for  private  purposes. 

§466.  Consent  of  municipality  to  occupy  streets  necessary. 

§467.  Right  to  grant  a  franchise  not  property  of  municipality. 

§468.  When  consent  of  municipality  not  necessary. 

§469.  Nature  of  a  grant  to  occupy  streets  or  highways. —  A  mere  privi- 
lege. 

§470.  Nature  of  a  grant  to  occupy  streets  or  highways. —  A  franchise. 

§471.  Acceptance  of  grant. 

§472.  Gas  company  must  comply  with  conditions  of  grant. 

§473.  Grant  to  occupy  streets  construed  strictly. 

§474.  What  streets  company  may  occupy. —  Sidewalk. 

§475.  Territory  annexed  to  another  municipality  after  grant  made. 

§476.  New  streets,  right  to  occupy. —  No  streets  specified. 

§477.  Sale  or  assignment  of  right  in  streets. 

§478.  Change  of  use  of  franchise. —  Natural  gas. 

§470.  Ordinance  void. —  Estoppel. 

§480.  Gas  company  occupying  streets  is  subject  to  municipal  regulations. 

§481.  Injunction  to  protect  company's  rights  in  streets. 

§482.  Grant  before  company  is  organized. 

§483.  Length  of  grant  of  franchise. 

§484.  Termination  of  life  of  corporation  before  expiration  of  franchise. 

§48.5.  Consolidation  of  gas  companies. 

§486.  Town  becoming  a  city. 

§487.  Injunction  to  restrain  laying  of  pipes  in  streets. 

§488.  Pipe  laid  in  street  unlawfully  laid  out. 

§489.  Revocation  of  grant. 

§490.  Forfeiture  of  right  to  occupy  streets  for  failure  to  perform  duty. 

§491.  Action  to  declare  forfeiture. —  Quo  icarranto. 

§492.  Waiver  of  right  to  declare  forfeiture. 

§493.  Changing  grade  of  streets. 

§494.  Tearing  up  streets. —  Obstruction. —  Indictment. 

§4*95.  Cutting  into  modern  pavements. —  Repairs. —  Permission. 

§496.  Injury  to  pipes  in  repairing  streets. 

§497.  Support  of  gas  mains. 

§498.  Gas  boxes  in  street. 

511 


512  OIL    AXD    GAS. 

§499.  Leaving  gasposts  in  street. 

§500.  Pipes  in  streets  not  an  additional  burden. 

§501.  Pipes  laid  in  navigable  river. 

§502.  Grant  of  right  to  use  suburban  liighway. —  Compensation  to  abutt- 
ing land  owner. 

§503.  Condemnation  of  land  owTier's  interest  in  highway. 

§504.  Land  owner  acquiescing  in  occupation  of  rural  highway. —  Injunc- 
tion.—  Estoppel. 

§505.  Pipe  lines  in  country  highway  an  additional  burden  on  easement. 

§500.  Consent  of  county. —  Public  highways,  crossing. 

§507.  Revocation  of  license  to  use  highway. 

§508.  Abutting  land  owner  removing  pipe  lines. 

§500.  Company  may  not  remove  pipes  unlawfully  laid  in  rural  higliway. 

§510.  Pipes  on  surface  of  highway  of  street. 

§463.     Definitions. —  Street  a  highway. 

The  tenn  ''  highway  "  is  generic.  It  inchides  all  public 
ways,  and  means  a  way  which  every  person,  whether  an  inhab- 
itant or  stranger,  may  use  for  ])assage  or  traffic.  It  includes 
streets  in  a  city  or  town,  turnpikes,  plankroads,  footways, 
sidewalks  and  bridges.^  A  ]ml)lie  alley  is  as  mnch  a  public 
highway  as  a  public  street.  In  usage  the  term  street  is  ap- 
plied to  ways  in  a  city  or  town,  and  is  seldom  applied  to  a 
public  way  in  the  country.^  But  as  has  been  aptly  said,  "  Every 
street  is  a  higliway,  but  every  higliway  is  not  a  street."^  A 
cid  de  sac  may  be  a  public  highway,  according  to  the  later  and 
better  considered  cases,*  depending,  however  on  the  facts  in 
each  instance.^ 

§464.     Control  of  streets  or  highways. 

Control  of  streets  in  a  city  or  town  is  almost  universally 
vested  in  the  city  or  towm ;  *^  and  it  is  an  anomalous  case  where 

1  Mobile  and  Ohio  R.  R.  Co.  v.  12;  Brace  v.  New  York  Central  R. 
Davis,  130  111.  146;  22  N.  E.-Rep.  R.  Co..  27  N.  Y.  269;  Heiple  v.  East 
850;  State  v.  Wilkinson,  2  Vt.  480;       Portland.   13  Ore.  97. 

Davis    V.    Smith,    130    Mass.     113;  *  Adams  v.  Harrington,    114   Ind. 

St.ite  V.  Mathis,  21  Ind.  277;  State  66;    14   N.   E.   Rep.   603;    Sheafe   v. 

V.    Berdetta,    73   Ind.    185;    20   Am.  People,  87  111.  189;  29Am.  Rep.  49; 

Law  Reg.  342;   38  Am.  Rep.   117.  People  v.  Kingman,  24  N.  Y.  559. 

2  A  notable  exception  is  the  old  s  state  v.  Frazier,  28  Ind.  196; 
Roman  road  in  England,  called  Bateman  v.  Bluck.  14  Eng.  L.  and 
"  Walling   Street."  Eq.  69. 

3  Indianapolis  v.  Croas,  7  Ind.  9,  *5  Hughes    v.    Momence,    163    111. 


STREETS    AXD    HIGHWAYS.  513 

this  is  not  true/'  In  the  case  of  public  country  highways,  control 
over  them  is  usuallv  vested  in  the  county*'^  although  there  is 
some  variance  from  this  rule.  The  entire  matter  is  usually 
the  subject  of  statutory  provisions;  and  such  statutes  must 
be  considered  in  determining  the  power  of  a  city,  town  or 
county  over  the  streets  or  highways  and  the  rights  of  a  gas 
com])any  therein.^ 

§465.     Use  for  private  purposes. 

Public  highways  and  streets  are  for  the  use  of  the  public, 
and  not  for  private  use.  An  individual  in  passing  along  them, 
is  not  devoting  them  in  the  strict  sense  of  the  term,  to  his  oa\ti 
private  use.  "A  grant  of  public  street  or  highway  through 
either  town  or  country,  cannot  be  considered  otherwise  than 
as  a  gi-ant  to  the  public.  It  confers  no  exclusive  right ;  but 
ex  vi  termini,  absolutely  excludes  the  idea  of  private  appro- 
priation." *'  The  same  court  from  which  this  quotation  is 
made  has  declared  that  "  public  highways  belong,  from  side 
to  .side  and  end  to  end,  to  the  public  "  ;  *  and  this  necessarily 
carries  with  it  the  corollary  that  no  one  can  take  a  public 
highway  for  his  own  private  use ;  for  if  he  do,  the  public  are 
exclud(Ml  from   it  by  his  occupation  of  its  surface.      "A  man 

535;    45   N.   E.   Rep.   300;    .State   v.  light  the  streets;  to  provide  a  sup- 

St.   Louis,   145   Mo.   551;   46   S.   W.  ply  of  water  for  the  use  of  the  in- 

Rep.   981;    Sharp   v.   South   Omaha,  habitants,"  does  not  confer  the  right 

53    Xeb.    700;    74   X.   W.    Rep.    76;  to  pass  an  ordinance  authorizing  a 

Coffeyville,  etc..  Co.  v.  Citizens',  etc.,  gas    company   to    hiy   mains   in   the 

Co..  55  Kan.  173;  40  Pac.  Rep.  326;  streets   to   supply  gas   for   domestic 

Mueller  v.  Egg  Harbor  City,   55  X.  purposes.     Ransberry    v.    Keller,    9 

J.    L.   245;    26   Atl.   Rep.    89;    Chi-  Pa.  Co.  Ct.  Rep.  299. 

cago.  etc..  Co.  v.  Lake.  130  111.  42;  L'nder     the     "general     welfare" 

22  X.  E.  Rep.  616;  affirming  24  111.  clause,  a  city  cannot  confer  a  fran- 

App.  346.  chise  for  the  owning  and  operating 

<5  Bennington    v.     Smith,     29    Vt.  of  water  works,  and  for  other  things 

254.     See  Philadelphia  Co.  v.  Free-  collateral   thereto.     Xational   Foun- 

port,   167  Pa.   St.  27;   31   Atl.  Rep.  dry,   etc..    Works   v.    Oconto   Water 

571.  Co.,    .52   Fed.   Rep.   29. 

*6  Consumers'    Gas    Trust    Co.    v.  *"  Conner     v.     Xew     Albany,      1 

Huntsinger,    12   Ind.   App.   285;    40  Blackf.   43. 

N.  E.   Rep.  34;   Board  v.  Indianap-  s  State  v.  Berdetta,  73  Ind.   185; 

olis.  132  Tnd.  27:  33  X.  E.  Rep.  972.  20  Am.  Law  Reg.  342;  38  Am.  Rep. 

■^  A  power  in  a  mvmicipality  "to  117. 


514  OIL    AXD    GAS. 

has  no  right,"  was  said  in  an  old  case,  "  to  eke  out  the  inconven- 
ience of  his  own  premises  by  taking  the  public  highway  intr> 
his  timber  yard."  *^  Thus  it  has  been  held  that  a  fruit  stand 
in  a  street  is  a  nuisance  2}er  se  "  and  so  are  hayscalcs,"^  a  stair- 
way,^" a  railroad." 

§466.     Consent  of  municipality  to  occupy  streets  necessary. 

Where  a  municipality  has  control  over  its  streets  and  public 
ways,  its  consent  to  occupy  snch  streets  and  ways  with  gas 
pipes  or  mains  must  be  obtained  before  a  company  can  lay  them 
therein.  Any  such  occupation  without  such  consent  is  illegal.^' 
But  the  building  of  a  plant  for  the  manufacture  of  gas,  and 
not  for  distribution^is  a  very  different  thing,  and  permission 
from  the  city  or  town  to  build  it  is  no  more  necessary  than  if  it 
were  any  other  kind  of  a  manufacturing  establishment.  It 
cannot  be  said  that  the  manufacture  of  gas  is  so  dangerous  as 
the  manufacture  of  gun  powder  or  dynamite ;  and  that  its 
manufacture  comes  within  the  power  of  a  municipality  to 
prevent  the  manufacture  and  storage  of  dangerous  and  highly 
explosive  materials  within  its  boundaries.  Although  a  city 
has  no  express  power  itself  to  lay  pi|>es  in  its  streets,  yet  under 
a  general  power  or  right  to  legislate  fully  in  regard  to  lighting 
its  streets,  authority  by  implication  is  given  it  to  direct  by 
ordinance  that  gas  pipes  be  laid  in  the  streets  for  the  purpose 

*8King   V.   Jones,   3   Camp.    230;  the  city  does  not  use  the  water   in 

Rex  V.  Cross,  3  Camp.  224.  its    public    buildings    or    supply    its 

9  State  V.  Berdetta,  supra.  hydrants.     Smith    v.    Lincoln.     170 
*o  Emerson    v.    Babcock,     66    la.  Mass.  488 ;  49  N.  E.  Rep.  640. 

257;    55   Am.   Rep.    273.  12  Carlisle  Gas   and  Water  Co.  v. 

10  Pettis  V.  Johnson,  56  Ind.  139.  Carlisle  Water  Co.,  182  Pa.  St.  17; 

11  Commonwealth  v.  Nashuar  etc.,  37  Atl.  Rep.  821;  Appeal  of  City  of 
R.  R.  Co.,  2  Gray  54;  Common-  Pittsburgh  (Pa.),  7  Atl.  Rep.  778; 
wealth  V.  Old  Colony,  etc.,  R.  R.  Chicago,  etc.,  v.  Lake,  130  HI.  42; 
Co.,  14  Gray  93;  Schwede  v.  Hem-  22  N.  E.  Rep.  616;  affirming  24  111. 
rich  Bros.  Brewing  Co.  (Wash.),  69  App.  346.  Under  the  constitution 
Pac.  Rep.  362.  of  California    (Art.   11,  Sec.   19).  a 

The  use  of  water  works  is  a  pub-  permit     is     not     necessary.     In     re 

lie  one.   if  every   inhabitant   of   the  Johnston,    137    Cal.     115;     60    Pac. 

city  along  the  pipe  lines  can  obtain  Rep.  973. 
water   if  he  desires  it  even  though 


STREETS    AXD    HIGHWAYS. 


515 


of  lighting.  In  fact,  it  is  said,  a  municipal  corporation  has 
the  inherent  jwwer  to  lay  gas-pipes  in  its  streets  for  the 
benefit  of  its  inhabitants.^^  A  statute  which  anthorizes  cor- 
lX)rations  to  exercise  all  powers  necessary  to  carry  into  effect 
the  objects  for  which  they  are  formed  does  not  authorize  a  gas 
company,  incorporated  for  a  particular  town,  to  lay  its  pipes 
in  the  streets  of  such  town  without  the  consent  of  the  municipal 
authorities.^* 


13  Strawbridge  v.  Philadelphia 
(Pa.),    13   Rep.  216;    13  Phila.    173. 

As  to  whether  a  gas  plant  is  a  dan- 
gerous agency,  see  sec.  389  and  the 
chapter  on  Nuisances. 

As  to  what  nninicipal  body  grants 
permission  to  occupy  the  streets  of 
New  York  City,  see  Ghee  v.  North- 
ern Union  Gas  Co.,  158  N.  Y.  510; 
53  N.  E.  Rep.  692,  reversing  34  X. 
Y.  App.  Div.  551;  56  N.  Y.  Supp. 
450. 

That  a  gas  company  must  first 
obtain  permission  from  a  munici- 
pality to  occupy  its  streets,  see  ilis- 
souri  V.  Murphy,  170  U.  S.  78;  18 
Sup.  Ct.  Rep.  505;  Witcher  v.  Hol- 
land W.  W.  Co.,  66  Hun  619;  20 
N.  Y.  Supp.  560;  Philadelphia  Co. 
V.  Freeport.  167  Pa.  St.  279;  31 
Atl.  Rep.  571;  Carlisle  Gas  and 
Water  Co.  v.  Carlisle  Water  Co., 
182  Pa.  St.  17;  37  Atl.  Rep.  821. 

14  Chicago,  etc..  Co.  v.  Lake,  130 
HI.  42;  22  N.  E.  Rep.  616,  affirming 
24   111.  App;  346. 

A  consent  secured  by  bribery  is 
invalid.  Keogh  v.  .  Pittston.  et«., 
Co.,  5  Lack.  Leg.  N.  242. 

An  ordinance  of  a  borough  in 
Pennsylvania  authorizing  a  gas  com- 
pany to  lay  its  mains  in  the  streets 
was  held  void,  where  the  borough 
had  no  power  to  authorize  the  sup- 
plying of  gas  to  its  inhabitants. 
Ransberry  v.  Kellar,  9  Pa.  Co.  Ct. 
Rep.    299. 

A  statute   empowering  a  munici- 


palitj'  to  grant  the  use  of  its  streets 
lo  lay  pipes  and  drains  to  supply 
heat  and  power,  does  not  authorize 
the  grant  of  a  use  to  lay  pipes  to  a 
company  for  "he  benefit  of  its  own 
private  use  for  an  automatic  pack- 
age delivery,  operated  by  compressed 
air.  Ampt  v.  Cincinnati,  6  Oliio  N. 
P.    401. 

The  use  must  be  a  public  one. 
Witcher  v.  Holland  W.  W.  Co.,  66 
Hun  619;  20  N.  Y.  Supp.  560; 
Schwede  v.  Hemrich,  etc.,  Co. 
(Wash.),  69  Pac.  Rep.  362. 

Where  no  question  of  an  exclu- 
sive franchise  is  involved,  or  a  mu- 
nicipality has  no  power  to  grant  it, 
a  company  may  be  authorized  to  lay 
its  pipes,  in  a  s<:reet  in  which  an- 
other company  has  its  pipes,  or  the 
city  may  lay  its  own  pipes  there. 
Hughes  V.  Momence,  163  111.  535; 
45  N.  E.  Rep.  300. 

The  borough  Act  of  1897  of  New 
Jersey,  providing  that  the  borough 
council  may  prescribe  the  manner 
in  which  individuals  or  corporations 
may  exercise  any  privilege  granted 
them  in  the  use  of  the  street,  only 
authorizes  the  regulation,  not  the 
prohibition,  of  such  privileges.  An 
ordinance  giving  the  street  commit- 
tee of  the  borough  arbitrary  power 
to  refuse  a  permit  to  tear  up  the 
streets  for  the  purpose  of  laying 
pipes  therein  is  void.  Madison  v". 
Morristown  (N.  J.  Ch.),  52  Atl. 
Rep.   158. 


516  OIL    AND    GAS. 

§467.     Right  to  grant  a  franchise  not  property  of  municipality. 

The  right  of  a  municipality  to  grant  permission  to  a  gas 
company  to  lay  down  pipes  iu  its  streets  to  silpply  gas  is  not 
a  part  of  the  municipality's  property,  to  which  the  corporate 
authority  of  such  municipality  is  to  revert  for  purposes  of 
revenue.  The  municipality  is  not  hound  to  sell  such  j>ermis- 
sion  or  treat  it  as  a  part  of  the  municipal  property  which  is 
to  be  used  for  the  purposes  of  municipal  revenue.^^ 

§468.     When  consent  of  municipality  not  necessary. 

Occasionally  the  charter  of  a  gas  or  water  company  is  so 
drafted  by  the  legislature  as  to  give  the  company  the  right  to 
enter  upon  and  lay**its  pities  or  mains  in  the  streets  of  the 
municipality  for  which  it  is  chartered  without  the  consent 
of  the  municipal  authorities.  Thus  where  the  charter  of  a 
company  expressly  authorized  it  to  lay  its  pipes  under  any 
highway  or  street  of  a  particular  city,  it  was  held  that  the 
company  need  not  first  obtain  the  consent  of  the  city  before 
putting  down  its  mains  in  the  streets,  and  that  a  statute  giving 
the  board  of  public  works  of  the  city  exclusive  control  over 
the  use  of  all  the  streets  of  such  city  did  not  repeal  that  pro- 
vision of  the  company's  charter  conferring  upon  it  the  right 
to  .so  lay  its  pipes.  ^'^ 

Where  a  statute  provided  that  a  company  might  "  lay  its 
wires  underground  as  the  same  may  be  necessary  and  in  so 
many  streets,   squares,   highways,   lanes   and   public  places   as 

A  power  to  grant  a  privilege   or  Permission  to  lay  its  'pipes  in  the 

franchise   "  by    ordinance "   in    Ten-  streets   of   one   municipality  cannot 

nessee   cannot   be   made   by   a   mere  be  so   stretched   oy  a   gas   company 

resolution;   and   if  such   a  gratflt  is  -as  to  enable  it  to  lay  them  in  an- 

made    by    ordinance,    it    cannot    be  other     and     distinct     municipality, 

amended  by  a  resolution.      Morris-  Madison  v.  Mo^risto^vn  Gaslight  Co. 

town    V.    East,    etc.,    Co.,    115    Fed.  (X.  J.).  54  Atl.  Rep.  439. 

Rep.    304.  15  Smith  v.  Metropolitan  Gaslight 

In  Washington  only  the  city  coun-  Co..   12  How.  Pr.   187. 

cil    can    make    the    grant,    not    the  us  Louisville    v.    Louisville    ^Yatpr 

board  of  public  works.     Schwede  v.  Co.,    105   Ky.    754 ;    40    S.    W.   Rep. 

Hemrich    Bros.,   etc.,    Co.     (Wash.),  766;   Atlanta  v.  Gate  City  Gaslight 

69   Pac.   Rep.   362.  Co.,   71    Ga.   106. 


STREETS    AND    HIGHWAYS. 


517 


may  be  deemed  necessary  for  the  purpose  of  supplying  elec- 
tricity and  gas  for  light,  power  and  heating,  the  whole  how- 
ever without  doing  any  unnecessary  damage  and  providing  all 
proper  facilities  for  free  passage  through  the  said  streets, 
squares,  highways,  lanes  and  public  places  while  the  works  are 
in  progress,"  it  was  held  that  the  power  to  break  the  surface 
of  the  streets,  and  to  excavate  them  for  the  purpose  stated  in 
the  statute  was  such  a  right  as  would  be  protected  by  injunc- 
tion, to  restrain  the  municipality  from  interfering  with  its 
laying  the  pipes  in  the  streets.^'  A  statute  gave  extensive  pow- 
ers to  electric  lighting  companies,  conferring  upon  them  the 
right  to  use  the  streets,  avenues,  highways  and  alleys  in  the 
State  for  the  purpose  of  erecting  poles  to  sustain  necessary 
wires,  with  the  proviso  that  no  poles  should  be  erected  in  any 
street  of  any  incorjoorated  "  city  or  town  "  without  first  ob- 
taining from  such  incorjwrated  "  city  or  town  "  a  designation 
of  the  streets  in  which  it  desired  to  place  such  poles,  and  the 
manner  of  placing  the   same.     It  was  held   that   an   electric 


1"  Montreal  v.  Standard  Light 
and  Power  Co.  [1897],  App.  Cas. 
527;  66  L.  J.  P.  C.  113;  77  L.  T. 
115;  Hill  V.  Wallasey  L.  B.  [1894], 
1  Ch.  133;  63  L.  J.  Ch.  1;  69  L.  T. 
641;  42  W.  R.   81 ;   7  Pvep.  51. 

In  England  where  the  Public 
Health  Act  of  1875  vests  in  urban 
authority  only  such  property  in  the 
soil  of  the  street  as  is  necessary  for 
the  control,  protection,  and  main- 
tenance of  the  street  as  a  highway 
for  public  use,  it  confers  upon  them 
no  authority  to  make  excavations 
in  the  soil  below  the  surface  for  the 
purpose  of  public  convenience 
(Tunbridge  Wells  Corporation  v. 
Baird  [1896].  App.  Cas.  434;  65 
L.  J.  Q.  B.  451;  74  L.  T.  385;  60 
J.  P.  788)  ;  and  it  was  held  that 
an  electric  lighting  company,  which 
had  illegally  broken  up  the  surface 
of  a  street  within  a  vestry  district 
and  placed  its  pipes  and  wires  two 
feet   below   the    surface,   would   not 


be  compelled,  at  the  suit  of  the 
vestry,  to  remove  such  pipes  and 
wires,  there  being  no  continuing 
trespass  upon  or  interference  with 
any  right  of  the  vestry;  for  such 
vestry  did  not  ovm  the  soil  at  the 
depth  where  the  pipes  and  wires  lay. 
Vestry  of  St.  Mary  v.  County,  etc., 
Co.  [1899],  1  Ch.  474;  68  L.  J.  Ch. 
238;  80  L.  T.  31;  15  T.  L.  Rep. 
175. 

For  a  case  where  a  statute  au- 
thorized a  gas  company  to  cross  a 
public  highway  without  first  secur- 
ing authority  so  to  do  from  local 
authority,  althovigh  not  to  lay  its 
pipes  along  such  highways,  see  Con- 
sumers' Gas  Trust  Co.  v.  Huntsinger, 
12  Ind.  App.  285;  40  X.  E.  Rep.  34. 

A  right  given  to  lay  pipes  in  a 
street  gives  authority  to  lay  lateral 
as  well  as  main  pipes,  and  to  place 
gas  boxes  in  such  street.  District  of 
Columbia  v.  Washington  Gaslight 
Co.  20  D.   C.  39. 


518  OIL    AXD    GAS. 

company  could  place  its  poles  in  the  highway  of  a  township 
without  leave  of  the  county  or  township  authorities,  the  words 
"  city  or  town  "  not  including  such  territories  of  the  State.^® 
A  statute  authorized  a  company  to  lay  its  conductors  and  mains 
under  all  the  streets  of  the  City  of  Xew  York,  in  consideration 
of  a  reduction  hy  the  company  of  the  price  of  gas.  A  subse- 
quent statute  repealed  this  statute,  but  provided  that  the  re- 
peal should  "  not  effect  or  impair  any  act  done,  or  right  ac- 
cruing, accrued,  or  acquired "  under  the  repealed  act,  and 
that  "  the  same  may  be  asserted  and  enforced  as  fully  and  to 
the  same  extent  as  if  such  law  had  not  been  repealed."  It  was 
held  that  such  company  was  not  deprived  of  its  right  to  lay 
new  mains  necessary  to  complete  unfinished  work,  and  to  make 
connections  between  the  mains  previously  laid  by  it.^^ 

§469.     Nature   of  a   grant  to   occupy   streets  or  highways. —  A 
mere  privilege. 

There  is  much  confusion  in  the  books  and  opinions  of  courts 
concerning  the  nature  of  the  grant  to  a  gas,  water  or  other 
company  to  occupy  the  streets  of  a  municipality  or  a  public 
highway  in  the  country  with  its  pipes  or  railroad  tracks.      In- 

18  Suburban,  etc.,  Co.  v.  East  A  company  in  Pennsylvania  in 
Orange    (N.  J.),   44   Atl.   Rep.   628.  good  faith  having  laid  pipes  in  the 

19  People  V.  Gilroy,  67  Hun.  323 ;  streets  of  a  city,  without  consent 
22  N.  Y.  Supp.  271.  of  the  city,  prior  to  May  29.   188.5. 

Where  a  company  was  authorized  comes  within   the  exception   to  sec. 

to  construct,  lay  and  operate  pneu-  16    of   that    Act.      Appeal    of    Alle- 

matic    tubes     within     and    between  ghaney   (Pa.),  11  Atl.  Rep.  6.58. 
cities,  it  was  held  that  this  did  not  A   statute   may   be   broad    enough 

by    itself    empower    it    to    lay    its  to    authorize    a    water    company   lo- 

tubes  along  the  suspension  bridge  be-  cated  in  one  village  to  lay  its  pipes 

tween  New  York  City  and  Iflhooklyn  through     another     village,     without 

without   the  consent   of  the   oflRcers  the    latter's    consent,    in    order    to 

in   control   of  it.      New   York  Mail,  reach    a    third    village    it    has    con- 

etc,    Co.    V.    Shea,    30    N.    Y.    App.  tracted  to  supply  v.ith  water.    Tar- 

Div.   266;    51    N.  Y.    Supp.   563.    re-  rytown    v.    Pocontico    W.     W.    Co., 

versing  4:J   N.   Y.    Supp.    n.51.      Seo-  1    X.   Y.    Supp.    304. 
Glasgow  V.  Glasgow,  etc..  R.  R.  Co.  As    to     California     constitutional 

[1895],  App.  Cas.  376;   64  L.  J.  P.  provisions,   see  Tn  re  Johnston,  137 

C.  171;  72  L.  T.  809;   .59  J.  P.  788;  Cal.  115;  69  Pac.  Rep.  973. 
11  Rep.  226. 


STREETS    AA"D    IIIGIIWAYS.  519 

deed,  no  writer  upon  the  subject  can  escape  falling  into  that 
confusion  in  the  use  of  terms  as  he  applies  them  to  sudi 
grants.  Sometimes  they  are  called  "  franchises,"  sometimes 
"  privileges,"  occasionally  "  grants."  Now  it  is  obvious  to 
any  one  reflecting  on  the  subject  that  a  franchise  is  a  very 
different  thing  from  a  contract  —  although  a  franchise  has 
within  it  the  elements  of  a  contract  —  a  license  or  a  privilege. 
The  granting  of  a  franchise  is  the  act  of  a  sovereign  power. 
An  old  definition  of  it  is  that  it  "  is  a  royal  privilege  or  branch 
of  the  king's  prerogative  subsisting  in  the  hands  of  the  subject, 
and  being  derived  from  the  crown  must  arise  from  the  king's 
grant."  '"**  Franchises  has  been  defined  by  the  Supreme  Court 
of  the  United  States  as  "  special  privileges  conferred  by  gov- 
ernment upon  individuals,  and  which  do  not  belong  to  the 
citizens  of  the  country  generally,  of  common  right."  "^  In  a 
Xew  York  decision  is  both  a  definition  and  description  of  a 
franchise:  "Franchises  are  privileges  conferred  by  grant 
from  government  and  vested  in  private  individuals.  They 
contain  an  implied  covenant  on  the  part  of  the  government  not 
to  invade  the  rights  vested,  and  on  the  part  of  the  parties  to 
execute  the  conditions  and  duties  prescribed  in  the  grant."  ^' 
A  gas  company  may  be  incorporated  and  its  charter  authorize 
it  to  make  and  sell  gas,  although  it  have  no  privilege  to  lay 
its  pipes  in  the  streets  of  the  municipality  where  located ;  and 
yet  it  would  possess  a  franchise  granted  by  the  sovereign  State 
unaccompanied  by  any  privilege  of  laying  its  pipes  in  the 
streets,  and  have  no  contract  with  the  municipiality  to  furnish 
it  gas ;  and  should  it  after  receiving  the  privilege,  enter  into  a 
contract  to  furnish  public  lights  at  so  much  per  light ;  —  the 
distinction  between  such  a  contract  and  the  company's  fran- 
chise is  quite  clear.  Usually,  if  not  universally,  a  gas  company 
is  organized  under  a  general  statute  authorizing  its  incorpora- 
tion  and  its  articles  of  incorporation  contain  a  statement  of  the 
place  of  its  home  office  and  where  it  will  operate ;  unless  it  is 

20  Board   v.   People,   91    111.   80.  537,   579.     See  State  v.  Weatherby, 

21  Bank    of   Augusta   v.    Earl.    13  45   Mo.    17;    People   v.    Ridgely,    21 
Pet.    519,    595.  111.    65;    Bridgeport    v.    New   York, 

22  Thompson  v.  People,   23  Wend.  etc.,  R.  R.  Co.,  36  Conn.  266. 


520  OIL    AXD    GAS. 

chartered  by  a  special  act  of  the  legislature,  and  then  the  field 
of  its  future  operations  is  almost  universally  specified.  Such 
a  company  has  no  right  to  enter  upon  the  streets  of  a  munici- 
pality Avithout  its  consent  to  lay  its  pipes,  unless  its  charter  or 
some  statute  expressly  gives  it  that  privilege.  Usually  the  act 
of  incorporation  and  the  grant  of  a  right  to  use  the  streets  are 
almost  simultaneous  acts ;  and  out  of  their  coincidence  in 
point  of  time  has  grown  up  the  confusion  between  a  franchise 
and  the  grant  of  a  right  or  privilege  to  occupy  the  streets.  The 
two  things  are  entirely  dift'ercnt ;  and  yet  there  is  dire  confu- 
sion about  their  natures  in  both  the  text  books  and  the  written 
opinions  of  the  courts.  The  Supreme  Court  of  Michigan  has 
pointed  out  the  distinction  wo  are  endeavoring  to  show.  ^''  The 
exercise  of  the  power  of  using  streets  for  laying  gas  pipes  is 
rather  an  easement  than  a  franchise,  and  a  similar  power 
is  used  as  often  for  private  drainage  and  other  purposes  as  for 
more  general  purposes.  It  is  a  matter  jTeculiarly  local  in  its 
character,  and  which  should  always  be  to  a  reasonable  extent 
under  a  municipal  supervision  to  prevent  clashing  among  the 
many  convenient  uses  to  which  ways  must  necessarily  be  sub- 
jected, for  water,  drainage  and  other  urban  needs.  But  the 
permission  to  lay  these  pipes  does  not  differ  in  any  respect  from 
that  required  for  laying  railways  over  land,  or  ditches  through 
it.  It  is  not  a  State  franchise,  but  a  mere  grant  of  authority 
which,  whether  coming  from  private  owners,  or  public  agents, 
rests  in  contract  or  license,  and  in  nothing  else.  It  in  no  way 
concerns  the  State  whether  the  poAver  is  granted  or  withheld, 
nor  whether  the  corporation  has  or  has  not  fulfilled  its  agree- 
ments." -^ 

23  People  V.  Mutual  Gaslight  Co.,  Co.  v.  Thurber,  2  R.  I.   15;   55  Am. 

38   Mich.    154.      In    this   casfe*  leave  Dec.    621.     That  it   is    a   license   or 

to  file  an  information  in  the  nature  permit,    see    Sandy    Lake   v.    Sandy 

of  a  quo  trarranto  to  have  the  char-  Lake,   etc.,   Co..    16    Pa.    Super.   Ct. 

ter  of 'a  gas  company  declared  for-  234;     Great    Falls    W.    W.    Co.    v. 

feited,   because    it   had   violated   its  Great   Northern    Ry.    Co.     (Mont.), 

contract    with    the    city    wherein    it  54    Pac.    Rep.    96-3 ;     Chicago,    etc.. 

was    located,    was    denied.      In    the  Co.  v.  Lake,   130  111.  42;   22   N.  E. 

same  line  see  Palestine  Water,  etc..  Rep.    616;     affirming    24    111.    App. 

Co.   v.    Palestine,    91    Tex.    540;    44  .346;    Chicago   R.   R.    Co.  v.   People. 

S.    W.    Rep.    814;    Providence    Gas  73  111.  541. 


STREETS    AXD    HIGHWAYS.  521 

§470.     Nature  of  grant  to  occupy  streets  or  highways, —  A  fran- 
chise. 

iSTotwithstandiiig  the  line  of  reasoning  pursued  in  the  fore- 
going section,  some  courts  have  held  that  the  grant  of  a  city  to 
a  gas  company  to  occupy  its  streets  with  lines  of  pipes  to 
furnish  gas  is  something  more  than  a  mere  license  or  privilege 
—  it  is  a  franchise.  Chief  among  these  is  the  Xew  York 
Court  of  Appeals.  In  one  case  it  was  said :  "At  the  thresh- 
old of  the  consideration  of  these  questions,  it  will  be  well  to 
have  in  mind  the  legal  effect  of  the  consent  which  the  municipal 
authorities  are  authorized  to  give  by  the  transportation  corpora- 
tion act.  It  operates  to  create  a  franchise,  by  which  is  vested 
in  the  corporation  receiving  it  a  ])erpetual  and  indispensable 
interest  in  the  land  constituting  the  streets  of  a  municipality. 
It  is  true  that  the  franchise  comes  from  the  State,  but  the  act 
of  the  local  authorities,  who  represent  the  State  by 
its  permission  and  for  the  purpose,  constitute  the  act 
upon  which  the  law  operates  to  create  the  franchise.  The 
State  might  grant  the  franchise  directly  to  the  corporation 
without  the  consent  of  the  local  authorities,  and  has  done  so 
in  many  instances ;  but  the  tendency'  of  later  years,  which  is 
well  grounded  in  reason,  is  for  the  State  to  confer  upon  the 
local  municipal  authorities  the  right  to  represent  it  in  the 
matter  of  granting  franchises  to  the  extent  that  the  final  act 
necessary  to  the  creation  of  franchises  must  be  exercised  by 
such  authorities.  The  legal  effect  of  the  consent,  therefore,  is 
the  same  as  if  the  local  authorities  in  form  granted  the  fran- 
chise and  the  interest  in  the  land."  -*  In  this  same  case  it  was 
conceded  that,  ''  The  consent  of  the  town  authorities  conferred 
upon  the  relator  a  franchise  to  carry  on  its  business  in  the 
town,  and  to  lay  conductors  in  the  streets  and  highways  for 
the  purpose  of  delivering  gas ;  that  such  a  franchise  is  property 
that  cannot  be  destroyed  or  taken  from  it  or  renewed  unless 
by  the  arbitrary  act  of  the  village  authorities  in  refusing  the 

24  People    V.    Deehan.    153    X.    Y.   •    11   X.  Y.  App.  Div.   175;   42  X.  Y. 
528;    47   X.   E.   Rep.   787,   reversing       Supp.  1071. 


522  OIL    AND    GAS. 

permit  to  place  the  conductors  under  the  streets."  "^  It  should 
be  observed  that  in  Xew  York  City,  where  this  doctrine  had 
its  origin,  the  fee  of  the  streets  is  in  the  City  and  not  in  the 
abutting  property  owner.  In  other  States  a  similar  rule  has 
been  adopted.^*' 

§471.     Acceptance  of  grant. 

In  whatever  way  a  grant  may  be  regarded,  whether  as  a  gift, 
donation  or  a  contract,  it  is  not  complete  until  accepted ;  and 
until  it  is  accepted  it  may  be  revoked.  Acceptance  is  essen- 
tial to  its  validity. ^^  Usually  the  ordinance  granting  the  right 
requires  the  company  to  tile  with  the  municipality  a  written 
acceptance  of  the  *^ant ;  but  where  no  such  requirement  is 
exacted  it  is  not  necessary.  An  acceptance  may  be  evidenced 
by  acts  alone.  Thus  where  the  grantee  was  required  by  the 
ordinance  to  commence  furnishing  gas  within  iive  years  at 
specified  rates ;  and  within  four  months  it  purchased  land  on 
which  to  erect  its  works,  and  in  nine  months  made  contracts ; 
it  was  considered  that  these  acts,  having  been  performed  in 
good  faith,  constituted  a  sufficient  acceptance,  and  it  Avas  too 
late  thereafter  to  repeal  the  ordinance."'^  The  acceptance  must 
l>e  of  the  exact  terms  of  the  grant;  a  qualified  acceptance 
is  invalid.      Not  only  must  the  acceptance  be  as  broad  as  the 

25  People  V.  Deehan,  153  N.  Y.  lijrlit  Co.  v.  Sutherland,  68  111.  App. 
528;   47  N.   E.  Rep.   787.     See   also       230. 

People  V.  O'Brien,  111  N.  Y.   1;   18  27  Metroplitan    Gas    Co.    v.    Hyde 

N.  E.  Rep.  692;   Railroad  Company  Park,  27  111.  App.  361;  affirmed  130 

V.  Railroad  Co.,  32  Barb.  358,  364;  111.  42;  22  N.  E.  Rep.  616;  People's 

Brooklyn  v.  Jourdan,  7  Abb.  N.  C.  Gaslight  and  Coke  Co.  v.  Hale,   94 

23.  111.  App.  406. 

26  Jersey  City  Gas  Co.  v.  Dwight,  The  acceptance  completes  the  con- 
29  N.  J.  Eq.  242;  Palestftie,  etc.,  tract.  Sandy  Lake  v.  Sandy  Lake, 
Co.  V.  Palestine,  91  Tex.  540;  44  etc.,  Co..  16  Pa.  Co.  Ct.  Rep.  234; 
S.  W.  Rep.  814;  National  Foundry,  Morristown  v.  East,  etc.,  Co.,  115 
etc.,   Co.   V.    Oconto   Water    Co.,    52  Fed.   Rep.   304. 

Fed.     Rep.     29;      Sharp     v.     South  28  Metropolitan  Gas   Co.  v.   Hyde 

Omaha,  53  Neb.  700 ;  74  N.  W.  Rep.  Park,    27    111.    App.    361;     affirmed 

76;  People's  Gaslight  and  Coke  Co.  130    111.    42;    22    N.    E.    Rep.    616; 

V.  Hale,  94  111.  App.  406;   Commer-  Clarksburg    Electric    Light    Co.    v. 

cial,  etc.,  Co.  v.  Tacoma,   17  Wash.  Clarksburg,   47   W.  Va.   739;    35   S. 

661;  50  Pac.  Rep.  592;  Joliet  Gas-  E.  Rep.  994;  50  L.  R.  A.  142. 


STREETS    AND    HIGHWAYS.  523 

grant,  but  when  made  it  will  be  construed  as  an  agreement  to 
obey  all  the  valid  ordinances  of  the  municipality  in  relation 
to  the  grant  and  its  subject  matter.  Thus  where  a  gas  com- 
pany was  gTanted  the  privilege  of  laying  its  pipes  in  the  streets 
of  a  city,  subject  to  the  conditions  of  a  prior  ordinance  fixing 
the  conditions  generally  on  which  a  company  could  occupy 
streets  with  its  pipes ;  and  the  company  by  resolution  filed  with 
the  city  agreed  to  comply  with  the  general  ordinance  "  except- 
ing so  far  as  any  of  the  terms  of  said  ordinance  may  be  held  or 
adjudged  illegal  or  unreasonable  by  courts,"  it  was  held  that 
as  the  city  council  had  never  consented  to  such  qualifications  of 
the  acceptance,  and  the  company  having  enjoyed  the  privileges 
of  such  ordinance  under  its  acceptance,  it  could  not  refuse  to 
comply  with  certain  provisions  of  the  ordinance  on  the  ground 
that  after  its  acceptance  it  had  been  adjudged  to  be  void."®  It 
is  not  necessary  to  name  all  of  the  sections  of  an  ordinance  in 
an  acceptance,  where  an  attempt  is  to  accept  it  by  sections ; 
for  the  acceptance  of  a  single  section  will  carry  with  it  an 
acceptance  of  all  the  provisions  of  the  ordinane.^"  A  mere  nom- 
inal acceptance  is  sufficient  to  bind  the  company  after  it  has 
enjoyed  the  whole  or  a  part  of  the  privileges  granted. ^^ 

§472.     Gas  company  must  comply  with  conditions  of  grant. 

A  gas  company  that  desires  to  retain  its  rights  in  the  streets 
must  substantially  comply  with  the  conditions  of  the  grant;  and 
if  it  fail  to  do  so,  it  may  forfeit  its  rights  therein.^^  The  con- 
dition may  he  a  precedent  or  a  subsequent  one.  Thus  where 
a  natural  gas  company  was  required  to  have  one  or  more  gas 
wells  in  operation  within  a  year  as  a  condition  precedent  to 
the  right  to  lay  pipes  in  the  streets,  its  right  to  lay  such  pipes 

20  Allegheny  v.  People's,  etc.,  Co.,  172   Pa.    St.    632;    26   Pittsb.   L.    J. 

172  Pa.  St.  632;   37  W.  N.  C.  442;  (N.  S.)    410;   37  W.  N.  C.  442;   33 

33   Atl.  Rep.   704.  Atl.  Rep.   704. 

"0  Sewickley   v.    Ohio   Valley    Gas  32  Capital     City     Water     Co.     v. 

Co..  6  Pa.  Co.  Ct.  Rep.  99,  reversed  State,    105    Ala.    406;    18    So.   Rep. 

but  not  on  this  point,  1  Monaghan,  62;  29  L.  R.  A.  743;  Sandy  Lake  v. 

97.  Sandy   Lake,   etc.,   Co.,    16    Pa.   Co. 

31  Allegheny  v.  People's,  etc.,  Co.,  Ct.  Rep.   234. 


524  OIL    AXD    GAS. 

was  held  not  to  accrue  until  it  had  at  least  one  well  in  opera- 
tion and  that  within  the  year."'''  Where  the  condition  was  that 
the  company  must  furnish  gas  within  one  year,  it  was  held  that 
the  acquisition  of  a  two-years'  lease  of  gas-works  was  not  a 
compliance  with  the  condition,  so  as  to  enable  the  company, 
after  the  expiration  of  the  year,  to  enjoin  the  town  in  its  at- 
tempt to  prevent  it  laying  its  own  pipes  in  the  streets ;  nor  was 
the  condition  complied  with  by  building  a  gas  apparatus  under 
cover,  and  withholding  all  knowledge  of  it  from  those  who  were 
to  receive  the  company's  advantages  imtil  the  year  specified  had 
elapsed.^* 

§473.     Grant  to  occupy  streets  construed  strictly. 

Grants  to  occupy  the  streets  of  a  city  are  strictly  construed. 
As  it  is  the  use  of  public  property  for  private  gain,  courts  are 
careful  to  see  that  the  rights  of  the  public  are  protected ;  and 
also  to  see  that  the  company  receives  nothing  beyond  what  has 
been  fairly  granted.  I^othing  passes  by  implication  except  that 
which  is  necessary  to  carry  into  effect  the  gi'ant.''^  In  the  New 
York  case  cited  the  court  said:  "  The  rule  that  public  grants 
are  to  be  construed  strictly  against  the  grantee  means  simply 
that  nothing  shall  pass  by  implication  except  it  be  necessary  to 
carry  into  effect  the  obvious  intent  of  the  grant.  But  the  ob- 
vious intention  of  the  parties,  when  expressed  in  plain  lan- 
guage, cannot  be  ignored  in  a  public  any  more  than  in  a  private 
grant.  A  construction  that  would  lead  to  false  consequences 
or  unjust  or  inconvenient  results,  not  contemplated  or  intended, 
should  be  avoided  in  a  grant  as  well  as  in  a  statute.  It  is  well 
known  that  business  enterprises  such  as  the  relator  is  engaged  in 
are  based  upon  calculations  of  future  growth  and  expansion. 
A  franchise  for  supplying  gas  not  only  confers  a  privilege,  but 

33  Newark  Gas,  etc.,  Co.  v.  New-  35  People    v.    Deehan.    153    N.    Y. 

ark,  8  Ohio  S.  and  C.  P.  Dec.  418;  528;    47   N.   E.   Kep.    787;    State   v. 

7  Ohio  N.  P.  76.  Boyce.    43    Ohio    St.    46:    1    N.    E. 

3*  Chicago,  etc.,  Co.  v.  Lake,  130  Rep.  17 ;  Pensacola  Gas  Co.  v.  Pen- 
Ill.  42;  22  N.  E.  Rep.  616;  affirm-  sacola,  33  Fla.  322;  14  So.  Rep. 
ing  27  111.  App.  346,  for  last  propo-  826 ;  Tampa  v.  Tampa  W.  W.  Co., 
sition.  (Fla.)    34  So.  Rep.  631. 


STREETS  a:«;d  iiitaiwAYS.  525 

imposes  an  obligation,  npon  the  corporation  to  serve  the  public 
in  a  reasonable  way.  The  relator  is  bound  to  supply  gas  to 
the  people  of  the  town  upon  certain  conditions  and  under  certain 
circumstances,  and  it  would  be  most  unjust  to  give  such  a 
construction  to  the  consent  as  to  disable  it  from  performing  its 
obligations."  "''' 

§474.     What  streets  company  may  occupy. —  Sidewalk. 

Where  the  ordinance  granting  the  gas  company  the  right  to 
furnish  gas  to  a  municipality  designates  the  streets  it  may 
occupy,  it  necessarily  follows  that  it  can  occupy  no  other  streets 
than  those  named  without  a  further  permit  from  the  munici- 
pality, unless  it  has  a  charter  which  gives  it  the  absolute  right 
to  occupy  the  streets  without  consent  of  municipal  authorities. 
But  if  an  ordinance  gives  it  the  right  to  occupy  the  streets,  and 
is  silent  as  to  what  streets,  then  the  company  can  make  its  own 
selection ;  and  it  cannot  be  successfully  urged  that  the  ordinance 
is  void.^'  As  the  sidewalks  are  a  part  of  the  street,  a  city  may 
authorize  a  gas  company  to  lay  its  gas  mains  therein.^® 

§475.     Territory   annexed   to   another   municipality   after   grant 
made. 

If  a  gas  company  is  given  authority  to  occupy  the  streets  of 
a  municipality;  and  thereafter  a  part  of  the  territory  of  such 
municipality  is  cut  off  and  annexed  to  another  or  erected  into 
a  new  and  separate  municipality,  the  company  has  the  right  to 
continue  in  the  use  of  the  part  so  cut  off,  and  even  to  occupy 

30  See    Appeal    of    Pittsbiirjr.    115  must  specify  the  territory  it  desires 

Pa.  St.  4;  7  Atl.  Rep.  778;  Western  to     occupy.       In     re     Conshohocken 

Paving,    etc..   Co.    v.    Citizen's,   etc..  Gaslioht    Co.,    5    Pa.    Co.    Ct.    Rep. 

Co.,    128    Ind.    525;    26    X.    E.   Rep.  585. 
188;  28  X.  E.  Rep.  88.  A    statute    requiring    a    company 

3"  Kalamazoo  v.  Kalamazoo,   etc.,  to    state    in    its    application    what 

Co..    124   Mich.    74;    82  X.   W.   Rep.  streets  it  desires  to  occupy  is  com- 

811.  plied  with  by  a  general  designation 

38  McDivitt    V.    Philadelphia    Gas  of  all  the  streets  of  the  city.    Myers 

Co..   160  Pa.  St.   367;   28  Atl.  Rep.  v.    Hudson,    etc.,    Co.     (X.    J.).    44 

948.  Atl.    Rep.    713,    reversing    37    Atl. 

In    Pennsylvania    a    gas    or    other  Rep.    618. 
public  company,  in  the  application. 


526  OIL    AND    GAS. 

new  streets  opened  up  in  that  part  of  the  territory  so  severed 
from  the  old  municipal  corporation.'"'* 

§476.     New  streets,  right  to  occupy. —  No  streets  specified. 

If  a  gas  company  be  given  the  right  generally  to  supply  gas 
to  a  municipality  and  to  occupy  its  streets  for  that  purpose,  it 
has  the  right  to  occupy  streets  opened  therein  after  the  grant, 
as  well  as  streets  laid  out  iu  now  territory.*"  Thus  where  the 
grant  Avas  the  "  power  of  laying  conductors  for  conducting  gas 
in  and  through  the  public  streets  and  highways  of  the  town," 
it  was  hold  that  the  grant  was  co-extensive  with  the  limits  of 
the  town,  and  was  not  confined  to  any  particular  street,  high- 
way, or  other  local  division.  The  lower  court  held  that  the 
grant  did  not  a]iply^o  streets  not  open  when  the  grant  was 
made ;  but  its  holding  was  reversed  on  apjx'al,  the  Ajjpellate 
Court  saying:  "  It  cannot  reasonably  be  contended  that  the 
relator  is  obliged  to  apply  for  a  new  grant  whenever  a  new 
street  is  opened  or  an  old  one  extended,  as  would  be  the  case 
if  the  consent  applied  only  to  the  situation  existing  when  made. 
AVlien  the  right  to  use  the  streets  has  been  once  granted  in 
general  terms  to  a  corporation  engaged  in  supplying  gas  for 
public  and  private  use,  such  grant  necessarily  contempla:tes 
that  new  streets  are  to  be  opened  and  old  ones  extended  from 
time  to  time,  and  so  the  privilege  may  be  exercised  in  the 
new  streets  as  well  as  in  the  old.  Such  a  grant  is  generally  in 
perpetuity  or  during  the  existence  of  the  corporation  or  at  least 
for  a  long  period  of  time,  and  should  l>e  given  effect  according 
to  its  nature,  pairpose,  and  duration.  There  is  no  good  reason 
for  restricting  its  operation  to  existing  highways,  unless  that 
purpose  appears  from  the  language  employed.  It  is  not  claimed 
that  any  such  limitation  was  expressed,  and  none  can  he  im- 
plied from  the  nature  of  the  ease.  The  language  of  consent 
confers  the  right  to  place  the  conductors  in  the  streets,  upon 
compliance  with  all  reasonable  regulations,  not  only  as  the 
streets   then   existed,   but    as    subsequently   enlarged.      That   is 

S9  People    V.    Deehan,    153    N.    Y.        11   N.  Y.  App.   Div.   175;    42  N.   Y. 
528;   47   N.   E.  Rep.   787;   reversing       Supp.   1071. 

40    See  Sec.  475. 


STREETS    AXD    HIGHWAYS. 


52^ 


what  the  grant  contemplated  when  made,  and  such  is  the  fair 
meaning-  of  the  language  used."  '*^ 

§477.     Sale  or  assignment  of  right  in  streets. 

If  the  right  to  lay  pipes  in  a  street  to  supply  gas  or  water 
be  regarded  i-s  a  franchise,  then  under  the  general  principles  of 
corjwration  law  the  right  cannot  be  assigned,  unless  a  statute 
authorizes  it.*^  But  if  the  right  be  regarded  as  a  mere  ease- 
ment, license  or  privilege,  then  it  may  be  assigned,  unless  the 
ordinance  containing  the  grant  forbid  it.*^  The  assignment 
does  not  prevent  the  grantor  or  the  State,  having  a  forfeiture 
declared  in  the  hands  of  the  assignee,  even  for  acts  of  the 
assignor.**  A  gas  company  cannot  lease  its  plant  without  the 
consent  of  the  municipalit}^*^  The  city  or  town  may  agree 
that  the  grant  may  be  assigned ;  and  a  grant  to  the  company  or 
its  assigns  is  sufficient  to  authorize  an  assignment  without  the 


farther  consent  of  the  city.*° 

41  People  V.  Deehan,  153  N.  Y. 
528;  47  N.  E.  Rep.  787;  reversing 
11  N.  Y.  App.  Div.  175;  42  N.  Y. 
Supp.    1071. 

For  the  right  of  a  company  to 
cross  unimportant  streets  without 
a  permit,  in  order  to  complete  its 
system,  see  National  Gas  Co.  v. 
Pittsburg,    1   Pa.   Co.   Ct.   Rep.   311. 

42  Thomas  v.  Railroad  Co.,  101 
U.  S.  71;  Y'ork,  etc.,  R.  R.  Co.  v. 
Winans,  17  How.  30;  Black  v.  Dela- 
ware, etc.,  R.  R.  Co.,  22  X.  J.  Eq. 
130;  Gibbs  v.  Consolidated  Gas  Co., 
130  U.  S.  396;  9  Sup.  Ct.  Rep. 
553 ;  Chicago  Gaslight  and  Coke 
Co.  V.  People's  etc..  Co..  121  111. 
530;  13  X.  E.  Rep.  169;  2  Am.  St. 
Rep.  124 :  reversing  20  111.  App. 
473;  Brunswick  Gaslight  Co.  v. 
IJnited,  etc..  Co.,  85  Me.  532;  27 
Atl.  Rep.  525;  35  Am.  St.  Rep. 
385. 

As  for  an  instance  not  amount- 
ing to  an  assignment  or  lease,  see 
Marlborough  Gaslight  Co.  v.  Xeal, 
166  Mass.  217;   44  X.  E.  Rep.   139. 


^\Tiere  the  sale  and  assignment 

43  Commercial,  etc.,  Co.  v.  Taco- 
ma,  17  Wash.  661;  50  Pac.  Rep. 
592;  Joliet  Gaslight  Co.  v.  Suther- 
land, 68  III.  App.  230;  State  v. 
Laclede  Gaslight  Co.,  102  Mo.  472; 
14  S.  W.  Rep.  974;  15  S.  W.  Rep. 
383;  22  Am.  St.  Rep.  789;  In  re 
Southern  Illuminating  Co.,  5  Pa. 
Dist.  Rep.  781. 

44  City  Water  Co.  v.  State  (Tex.), 
33  S.  W.  Rep.  259. 

45  Visalia  Gas,  etc.,  Co.  v.  Sims, 
104  Cal.  326;  37  Pac.  Rep.  1042; 
Bath  Gaslight  Co.  v.  Claffy.  74  Hun 
638;    26   X.   Y.   Supp.    287. 

46  Los  Angeles  v.  Los  Angeles 
Water  Co.,  177  U.  S.  558;  20  Sup. 
Ct.  Rep.  736;  American  Water 
Works  Co.  V.  Farmers'  Loan  and 
Trust  Co.,  73  Fed.  Rep.  956;  20  C. 
C.  A.  133;  36  U.  S.  App.  563;  San 
Luis  Water  Co.  v.  .Estrada,  117  Cal. 
168;  48  Pac.  Rep.  1075;  State  v. 
Laclede  Gaslight  Co.,  102  Mo.  472; 
14  S.  W.  Rep.  974;  15  S.  W.  Rep. 
383. 


528  OIL    AND    GAS. 

of  a  franchise  is  permitted,  the  purchaser  or  assignee  succeeds 
to  all  the  rights  and  privileges  of  the  assignor,  even  to  the  extent 
of  excluding  all  other  companies  where  the  franchise  assigTicd 
is  of  that  character ;  ■*'  and  assumes  all  its  burdens,  even  to  the 
extent  of  furnishing  the  city  free  gas  when  that  privilege  is 
contained  in  the  original  contract.*^  And  the  city,  consenting 
to  the  assignment  if  that  is  necessary,  is  bound  to  carry  out 
with  the  assignee  its  agreements  made  with  the  assignor.*^ 

§478.     Change  of  use  of  franchise. —  Natural  gas. 

A  gas  company  cannot  use  its  powers  for  any  purpose  than 
those  specified  in  its  franchise;  and  it  cannot  use  the  streets 
for  any  other  purposi^^than  those  named  in  the  contract  with 
the  muuici]>ality.  Illustrations  of  this  have  been  given  in  dis- 
cussing the  question  of  exclusive  franchises  or  monopolistic 
contracts.  In  the  construction  of  special  legislative  grants  all 
doubts  are  to  be  construed  against  the  grantee,  and  liberally 
in  favor  of  the  public.^"  As  has  been  stated,  an  exclusive  fran- 
chise to  maintain  a  horse  car  line  is  not  violated  by  the  grant 
of  a  franchise  to  maintain  a  car  line  by  the  use  of  electricity.^^ 
jSJ'or  does  an  exclusive  franchise  to  furnish  light  by  gas  prohibit 
the  introduction  of  public  electric  lights  by  another  company.^' 
So  a  statute  upon  the  subject  of  gas,  enacted  long  before  natu- 
ral gas  came  into  use  in  the  State,  has  no  reference  to  natural 


47  South  Side  Gas  Co.  v.  South-  send  v.  Brown,  24  N.  J.  L.  80 ; 
ern,  etc.,  Co.,  18  Pa.  Co.  Ct.  Rep.  Black  v.  Delaware,  etc.,  Co.,  24  N. 
529.  J.   Eq.  455,  474;    Tampa  v.  Tampa 

48  Sandy    Lake    v.     Sandy    Lake,  W.  W.  Co.    (Fla.),  34  So.  Rep.  631. 
etc.,    Gas    Co.,     16    Pa.    Supr.     Ct.  si  Omaha,  etc.,  Co.  v.  Cable,  etc., 
Rep.    234;    Freeport    v.    Enterprise  Co..   30  Fed.   Rep.   324. 

Natural  Gas  Co.,   18   Pa.   Supr.  Ct.  52  Newport  v.  Newport  Light  Co., 

73.  11  Ky.  L.  Rep.  840;   12  S.  W.  Rep. 

40  Austin  V.  Bartholomew,  107  1040;  Saginaw  Gaslight  Co.  v.  Sag- 
Fed.  Rep.  349;  46  C.  C.  A.  327.  inaw,   28    Fed.    Rep.    529;    Parkers- 

50  State   V.   Payne,    129   Mo.   468;  burg  Gas  Co.  v.  Parkersburg,  30  VV. 

31    S.    W.    Rep.    797;    33    L.    R.   A.  Va.   435;    4    S.    E.    Rep.   650.      Nor 

576 ;   Central  Transportation  Co.  v.  may  the  gas  company  furnish  elec- 

Pullman  Palace  Car  Co..  139  U.  S.  trioity.     State  v.  ]\Iurphy,  170  U.  S. 

24;    11    Sup.   Ct.    Rep.   478;    Town-  78;    18  Sup.  Ct.  Rep.   505. 


STREETS    A^"D    HIGHWAYS.  529 

gas.^^  The  natural  conclusion  from  these  cases  to  be  drawn 
is  that  a  gas  company  given  tlie  privilege  to  use  the  streets  in 
order  to  furnish  gas  for  public  lighting  cannot  furnish  electri- 
city for  light.  Such  in  fact  is  the  case.  So  a  like  conclusion 
is  reasonably  reached  that  a  company  given  the  privilege  of 
the  streets  to  lay  pipes  therein  in  order  to  furnish  artificial  gas 
cannot  use  such  pipes  in  order  to  supply  natural  gas ;  and  so 
it  is  decided.""*  Keeping  in  mind  the  strict  construction  and 
the  cases  already  cited,  it  seems  to  be  a  rational  conclusion  that 
an  artificial  gas  company  having  its  pipes  in  the  streets  cannot 
use  them  for  the  purpose  of  supplying  natural  gas ;  and  a  natural 
gas  company  cannot  use  its  pipes  to  supply  artificial  gas.  iSTor 
is  it  going  beyond  the  legitimate  course  of  reasoning  from  the 
decided  cases  to  say  that  a  company  given  a  franchise  to  furnish 
gas  for  light,  and  the  right  to  use  the  streets  for  that  purpose, 
cannot  use  sucli  streets  to  supply  gas  for  heating  purposes.  It 
makes  no  difference  that  the  gas  belongs  to  the  consumer  as 
sooii  as  it  has  passed  through  the  meter  (when  meters  are  used), 
and  the  company  thereafter  has  no  control  over  it ;  for  it  is 
the  use  of  the  street  in  the  transportation  of  the  gas  that  is 
]>erverted.  The  grant  is  for  the  purpose  of  transporting  gas 
for  the  purposes  of  light  and  not  for  heat;  and  whenever  the 
company  connives  at  the  use  of  the  gas  so  transported  it  vio- 

53  Warren  Gaslight  Co.  v.  Penn-  natural  gas.  Emerson  v.  Common- 
sylvania  Gas  Co.,  lo  Pa.  Ct.  Rep.  wealth,  15  W.  N.  C.  425;  108  Pa. 
310;  affirmed  IGl  Pa.  St.  510;  29  St.  Ill;  Sterling's  Appeal,  111  Pa. 
Atl.   Eep.    101.  St.    35;    2    Atl.    Rep.    105;    2    Cent. 

54  Findlay  Gaslight  Co.  v.  Find-  Rep.  49.  But  where  a  corporation 
lay,  2  Ohio  Cir.  Ct.  Rep.  237;  1  was  formed  to  supply  gas  for  light, 
Ohio  Cir.  Dec.  463 ;  Kentucky  Heat-  or  heat,  or  both,  and  for  other  pur- 
ing  Co.  V.  Louisville  Gas  Co.  (Ky. ),  poses,  and  its  charter  made  no  re- 
63  S.  W.  Rep.  651;  23  Ky.  L.  Rep.  strictions  as  to  uses,  it  was  held 
730.  that  it  could  supply  natural  gas  for 

The  Pennsylvania  corporation  act  lighting,    unless    some    other    com- 

of  1874,  or  the  incorporation  of  gas  pany  had  the  exclusive  right  to  do 

companies,   contemplates   only   com-  so.      Hagan    v.    Fayette    Gas    Fuel 

panics  supplying  the  manufactured  Co.,    21    Pa.   Co.    Ct.   Rep.    503;    29 

product,  and  does  not  aiithorize  the  Pittsb.  Leg.  J.    (N.  S.)   229. 
creation  of  a  corporation  to  supply 


530 


OIL    AND    GAS. 


lates  the  privileges  extended  to  it,  and  under  cover  of  one  privi- 
lege is  insisting  on  another.^^ 

§479.     Ordinance  void. —  Estoppel. 

If  the  ordinance  granting  the  right  to  occupy  the  streets  be 
void,  yet  if  the  company  accept  it,  perform  all  its  requirements, 
by  constructing  its  works  and  laying  its  mains,  the  municipality 
will  be  estopped  to  set  up  that  the  company  is  in  the  streets  with- 
out right ;  and  if  it  has  a  contract  with  the  municipality  to 
furnish  gas,  has  furnished  it  and  received  pay  in  part,  the  latter 
will  also  be  estopj>ed  to  set  up  that  such  contract  is  void.^" 


55  See  Warner  Gaslight  Co.  v. 
r'ennsylvania  Gas  Co.,  1^1  Pa.  St. 
510;  29  Atl.  Rep.  101;  Hagan  v. 
Fayette  Gas  Fuel  Co.,  21  Pa.  Co. 
Ct.  Rep.  503;  29  Pittsb.  L.  J.  (N. 
S.)  229;  Lebanon  Gas  Co.  v.  Leba- 
non Fuel,  etc.,  Co.,  5  Pa.  Dist.  Rep. 
529;  18  Pa.  Co.  Ct.  Rep.  223.  A 
contract  to  supply  natural  gas  for 
heat  is  not  one  to  furnish  it  for 
light.  Philadelphia  Gas  Co.  v.  Park 
Bros.,  138  Pa.  St.  346;  22  Atl.  Rep. 
86.  See  Johnston  v.  People's,  etc. 
Gas  Co.  (Pa.),  7  Atl.  Rep.  167;  5 
Cent.  Rep.  564. 

In  Pennsylvania  a  single  corpora- 
tion cannot  be  chartered  to  manu- 
facture and  supply  gas  and  also 
to  supply  heat  by  means  other  than 
gas  (nor  to  portions  of  two  coun- 
ties). New  Gaslight  Co.,  7  Pa.  Dist. 
Rep.  151;  1  Dauph.  Co.  Rep.  22. 
B\it  see  Wilkes-Barre  Light  Co.  v. 
Wilkes-Barre,  etc.,  Co.,  4  Ku1q,-47. 

A  charter  for  the  manufacture 
and  supply  of  gas  generally  does  not 
conflict  with  a  prior  franchise  for 
the  manufacture  and  svipply  of  gas 
for  liirht  only,  but  carries  with  it 
no  authority  to  supply  gas  for  light. 
Jn  re  Philadelphia  Gas  Works,  1 
Dauph.  Co.  Rep.  55 ;  Jn  re  Charter 
of  Gas   Companies,    18    Pa.   Co.   Ct. 


Rep.  136;  5  Pa.  Dist.  Rep.  396.  See 
Altoona  Gas  Co.  v.  Gas  Co.  of  Al- 
toona,  17  Pa.  Co.  Ct.  Rep.  662. 

A  corporation  under  a  special  Act 
chartered  to  build  works  which  may 
improve  trade,  may  engage  in  the 
production  and  delivery  of  natural 
gas.  Carother's  Appeal,  118  Pa. 
St.  468;  12  Atl.  Rep.  314;  11  Cent. 
Rep.  48. 

50  Illinois  Trust,  etc..  Bank  v. 
Arkansas  City,  76  Fed.  Rep.  271; 
22  C.  C.  A.  171;  40  U.  S.  App.  257; 
34  L.  R.  A.  518.  See  Morristowm 
V.  East,  etc.,  Co.,  115  Fed.  Rep. 
304. 

A  statute  prohibiting  a  town  en- 
tering into  a  contract  for  public 
lights,  but  no  contract  should  go 
into  operation  until  authorized  by 
a  vote  of  its  inhabitants,  does  not 
prevent  it  entering  into  such  a  con- 
tract with  a  company  duly  organ- 
ized by  a  vote  of  such  inhabitants 
without  another  vote.  Lima  Gas 
Co.  V.  Lima,  4  Ohio  Cir.  Ct.  Rep. 
22;  22  Wkly.  L.  Bull.  272;  2  Ohio 
Cir.  Dec.  396. 

Vetoing  an  ordinance  after  the 
time  allowing  a  veto  will  not  annul 
a  contract  made  under  it.  Penn- 
sylvania Globe  Gas  Co.  v.  Scranton, 
97  Pa.  St.  538. 


STREETS    AND    HIGHWAYS.  531 

§480.     Gas  company  occupying  streets  is  subject  to  municipal 
regulations. 

A  gas  company  occupying  the  streets  of  a  municipality  is  sub- 
ject to  the  reasonable  rules  and  regulations  of  such  municipal- 
ity with  reference  to  its  opening  and  use  of  its  streets ;  and  it 
makes  no  difference  w^hether  such  company  has  the  right  to  oc- 
cupy such  streets  without  the  consent  of  the  municipality  or 
not.  The  rules  and  regulations  must  of  course  be  reasonable. ^^ 
Usually  requirements  with  reference  to  opening  streets  and 
laying  pipes  therein  are  inserted  in  the  grant  to  the  gas  com- 
pany ;  frequently  they  are  in  general  ordinances  in  force  at  the 
time  of  the  grant,  and  occasionally  in  the  statutes  of  the  State. 
In  whatever  phase  they  are  presented,  they  must  be  obeyed  by 
the  company.  In  fact,  there  is  nothing  to  prevent  the  munici- 
pality adopting  such  regulations  after  the  grant  to  a  company 
has  been  nuide,  so  long  as  they  are  reasonable,  which  are  neces- 
sary for  the  protection  of  property  and  of  the  public,  hav- 
ing a  due  regard  for  the  rights  of  the  company.  Thus,  it  is 
a  frequent  requirement,  one  almost  universally  required,  that 
the  trenches  in  a  street  in  which  the  pipes  are  laid  shall  be 
filled  so  as  to  leave  the  streets  in  as  good  a  condition  as  they 
were  before  such  trenches  were  opened ;  and  under  such  an 
agreement  a  municipality  has  the  right  to  insist  on  the  work 
being  done  under  such  reasonable  conditions  and  restrictions 
as  shall  make  it  certain  that  the  work  will  be  properly  done.^^ 

If  a    gas    companj^   enter   on   the  82  N.  W.  Rep.  811;   State  v.  Mur- 

streets  under  a  void  ordinance,  and  phy,  170  U.  S.  78;  18  Sup.  Ct.  Rep. 

occupy    them    with    its    pipes    and  505;    Walla  Walla  v.   Walla   Walla 

mains,    it    cannot   set   up    that   the  Water  Co.,  172  U.  S.  1;  19  Sup.  Ct. 

grant  is  void.     Sandy  Lake  v.  Sandy  Rep.    77 ;     aflfirming    60    Fed.    Rep. 

Lake,   etc.,    Co.,    16   Pa.    Super.    Ct.  057;   Palestine,  etc..  Co.  v.  Palestine, 

Rep.   234.  91    Tex.    540;    44    S.    W.    Rep.    814; 

^'^  Reading  v.  Consumers'  Gas  Co.,  People  v.  Chicago  Gas  Trust  Co.,  130 

2  Del.  Co.  Rep.    (Pa.)   437;   Benton  111.  268;  22  N.  E.  Rep.  798;  8  L.  R. 

V.   Llizabeth,   61   N.   J.   L.   693;    40  A.   497;    Traverse   City   Gas   Co.   v. 

Atl.    Rep.    1132,    affirming    39    Atl.  Traverse    City    (Mich.),    89    N.    W. 

Rep.  683;   Appeal  of  City  of  Pitts-  Rep.  574;   In  re  Johnston,   137  Cal. 

burg,    115    Pa.    St.    4;    7    Atl.   Rep.  115;   69   Pac.  Rep.   974. 

778;  Heman  v.  St.  Louis,  etc.,  Co..  ss  Kalamazoo  v.   Kalamazoo,   etc., 

75    Mo.    App.    372;    Kalamazoo    v.  Co..   124  Mich.   74;    82  N.  W.   Rep. 

Kalamazoo,  etc.,  Co.,  124  Mich.  74;  811. 


532  OIL    AND    GAS. 

The  regulations,  altlioiigh  adopted  subsequent  to  the  date  of  the 
grant,  may  relate  to  the  manner  of  laying  the  pipes,  altering, 
inspecting,  and  repairing  them,  and  the  character  thereof  with 
respect  to  the  safety  of  the  public  and  its  convenience,  of  course 
not  contravening  any  statute.'^''  The  grant  may  require  the 
pipes  to  be  laid  a  certain  distance  below  the  surface  of  the 
street;  but  if  that  depth  should  conflict  with  the  open  sewers 
and  the  flow  of  -the  Avater  in  them,  then  that  fact  must  be  taken 
into  consideration ;  and  if  the  city  reserves  the  right  for  its 
council  to  determine  Avhere  the  pii>es  of  a  water  company  shall 
be  located,  and  to  employ  an  engineer  to  see  that  the  Avater 
works  are  so  constructed  as  to  properly  protect  the  intetrests  of 
the  citv,  that  does  not  confer  on  the  engineer  employed  power 
to  determine  the  location  of  the  pipes.  In  such  an  instance, 
if  the  company  locate  and  put  in  its  pipes  Avithout  any  deter- 
mination or  direction  of  the  council  as  such,  its  adoption  of  the 
plans  of  the  engineer  in  no  wise  changes  its  responsibility.*'" 
If  the  contract  Avith  the  company  be  that  the  pipes,  even  on 
private  land,  shall  be  "  Avell  and  sufliciently  closed  upi,"  and  the 
land  and  premises  be  "  made  good,"  it  is  not  a  compliance  Avith 
such  contract  to  leave  the  soil  covering  the  pipes  in  the  trenches 
in  places  from  tAvo  to  two  and  a  half  feet  above  the  original 
level."^  Ai  municipality  may  adopt  an  ordinance  to  prohibit 
gas  companies .  laying  pipes  in  the  streets  during  the  Avinter 
months,  so  as  to  prevent  the  streets  becoming  obstructed.'^"     If 

59  Appeal  of  City  of  Pittsburg,  Where  an  ordinance  required  re- 
115  Pa.  St.  4;  7  Atl.  Rep.  778;  He-  pairs  to  be  made  within  a  specified 
man  v.  St.  Louis  etc.,  Co.,  75  Mo.  time  after  notice  given  by  the  city 
App.  372;  Benton  v.  Elizabeth,  61  to  make  them;  and  upon  receiving 
N.  J.  L.  693;  40  Atl.  Rep.  1132,  such  a  notice  work  was  begun  with- 
affirming  39  Atl.  Rep.  683.  in  two  days  thereafter  and  prosecut- 

60  Montgomery  v.  Capital*  City  ed  with  due  diligence,  but  not  coni- 
Water  Co..  92  Ala.  361 ;  9  So.  Rep.  pleted  until  the  day  after  the  time 
339.                  ■  for    completing    the    work    had    ex- 

61  Chisholm  v.  Halifax,  29  Nov.  pired,  it  was  held  that  there  was 
Sco.  402.  a  compliance  with  the  requirements 

In  this  case  it  was  also  held  that  of    the    ordinance.      Heman    v.    St. 

putting   stones    in    the    trenches    so  Louis,  etc.,  Co.,  75  Mo.  App,  372. 
that   they    interfered    with    plowing  62  North   Liberties  v.   North   Lib- 

the  ground  was  not  a  breach  of  the  erties  Gas  Co.,  12  Pa.  St.  318. 
contract. 


STREETS    AND    HIGHWAYS.  533 

there  be  a  general  ordinance  in  force,  when  the  right  to  occupy 
the  streets  is  granted,  providing  that  all  pipes  laid  in  the  streets 
should  be  laid  a  certain  depth,  and  under  the  supervision  of 
the  street  commissioners ;  and  such  grant  is  expressly  made 
subject  to  all  ordinances  then  or  thereafter  in  force,  such  pipes 
must  be  laid  under  the  supervision  of  such  street  commis- 
sioners.*'^ An  ordinance  granting  the  right  to  lay  and  maintain 
pipes  in  the  streets,  reserving  their  location  to  the  common 
council,  does  not  mean  when  the  location  has  once  been  deter- 
mined upon  and  fixed  that  the  municipality  has  exhausted  its 
power  in  that  respect  and  has  no  further  power  to  regulate  and 
change  the  location."*  In  its  regTilations  all  companies  must 
be  treated  alike;  and  one  cannot  be  denied  privileges  granted 
others.  Thus  where  an  ordinance  required  a  special  permit 
of  the  board  of  supervisors  before  poles  for  electric  lighting 
could  be  erected  in  the  streets,  and  a  permit  was  issued  to  one 
company  and  denied  to  another,  it  was  said  that  the  latter 
company  could  maintain  an  action  for  a  mandamus  to  compel 
the  issuance  to  it  of  a  proper  permit,  but  it  was  also  said  that 
it  could  not  enjoin  the  other  company  from  erecting  its  poles."^ 
But  mandamus  will  not  lie  to  compel  a  city  to  grant  permits  to 
lay  wires  in  a  street,  where  the  company  by  virtue  of  its  charter 
claims  the  right  to  lay  them  without  complying  with  reasonable 
police  regulations  on  the  subject  adopted  by  the  city,  such  com- 
pany not  having  offered  to  comply  with  them.''*' 

63  Wilkinsburg  Gas   Co.   v.   Wilk-       Ashworth.  118  Cal.  1;   50  Pac.  Rep. 
insburg,  25  Pitts.  L.  J.   (X.  S.)   42.       10.     See  also  State  v.  St.  Louis,  145 

A  company  having  its  pipe  line,  Mo.  551;  46  S.  W.  Rep.  981,  where 

although  occupying  a  private  right  mandamus  was  held  the  proper  writ 

of    way,    to    transport    oil    through  to   compel    the   granting   of   certain 

land  which  is  traversed  by  a  public  permits   to   a    company   already   oc- 

street   of   a   city,    is    subject  to   an  cupying   the    streets.     In    this    case 

ordinance  prescribing  the  manner  in  it  was  held  that  an  ordinance  was 

which    the    pipe    shall    be    laid    and  not  void  because  it  did  not   reserve 

used.     Benton  v.  Elizabeth    61  N.  J.  to  the   city   control   over   the  works 

L.   693;   40  Atl.  Rep.    11.32;   affirm-  or  business   of  the   company  or  re- 

ing  39  Atl.  Rep.   683.  quire  it  to  serve  the  public. 

64  Montgomery    v.    Capital,    etc.,  eo  State    v.    Murphy,    170    U.    S. 
Co.,  92  Ala.  361;  9  So.  Rep.  339.  78;    18    Sup.    Ct.    Rep.    505. 

65  Mutual    Electric    Light    Co.    v.  Where  the  constitution  of  a  State 


534:  OIL    AND    GAS. 

§481.     Injunction  to  protect  company's  rights  in  streets. 

If  a  company  has  been  properly  granted  the  privilege  to  use 
the  streets  of  a  city  —  or  has  been  granted  a  franchise  in  such 
streets,  as  is  usually  said  —  a  court  of  equity  will  protect  its 
rights  by  an  injunction. °^  But  where  a  municipality  is  not 
empowered  to  grant  an  exclusive  franchise,  a  gas  company  with 
the  grant  of  such  a  right  cannot  obtain  an  injunction  to  restrain 
another  company  obtaining  a  subsequent  grant  of  the  right  to 
occupy  the  same  streets."^ 

§482.     Grant  before  company  is  organized. 

It  is  no  objection  to  the  grant  to  a  gas  company  of  a  right  to 
lay  pipes  in  the  streetarthat  it  was  made  before  the  company 
was  incorporated,  if  it,  after  its  organization,  accept  the  ordi- 
nance and  enter  upon  the  work  of  laying  pipes  before  objection 
was  made.*'*' 

§483.     Length  of  grant  of  franchise. 

Unless  the  charter  or  a  statute  fixes  a  limit,  or  the  contract 
with  the  city  determines  it,  the  length  of  time  a  gas  company 

gives  corporations  the  right  to  lay  A  city  may  require  water  mains 
gas  mains  or  water  pipes  in  the  to  be  removed  and  placed  else- 
streets  of  municipal  corporations,  where,  when  no  longer  needed  in 
under  the  direction  of  the  superin-  the  place  where  they  are  located, 
tendent  of  streets,  such  municipali-  Asher  v.  Hutchinson  Water,  etc., 
ties  cannot  adopt  an  ordinance  re-  Co.,  71  Pac.  Rep.  813. 
quiring  a  corporation  to  first  obtain  <!7  Jersey  City  Gas  Co.  v.  Dwight, 
a  permit  before  laying  its  pipes  in  29  N.  J.  Eq.  242;  Natural  Gas  Co. 
the  streets,  the  exercise  of  such  au-  v.  Pittsburg,  1  Pa.  Co.  Ct.  Rep. 
thority  not  being  an  exercise  of  the  311;  Goodson  v.  Richardson,  L.  R. 
police  power.  In  re  Johnston,  137  9  Ch.  221;  43  L.  J.  Ch.  790;  30 
Cal.  ll.'");  69  Pac.  Rep.  973.  *  L.  T.  (N.  S.)  142;  22  W.  R.  337. 
A  city  may  require  a  gas  com-  cs  Coffey ville,  etc.,  Co.  v.  Citi- 
1  pany  to  lay  its  pipes  in  the  alleys  zens',  etc.,  Co.,  55  Kan.  173;  40 
whenever   practicable   if  ordered  by  Pac.  Rep.  326. 

its    council,    imder    a    clause    in    a  C9  Clarksburg   Electric   Light    Co. 

statute    empowering    such     city    to  v.   Clarksburg,  47   W.   Va.   739;    35 

impose  reasonable  regulations  upon  S.   E.   Rep.    994;    50  L.   R.  A.   142; 

gas    companies     using     its     streets.  Sharp    v.    South    Omaha.    53    Neb. 

Traverse  City  Gas   Co.   v.   Traverse  700;    74  N.   W.   Rep.   76.     See  Peo- 

City   (Mich.),  89  N.  W.  Rep.  574.  pie  v.   Bowen.   30  Barb.   24. 


STREETS    AND    HIGHWAYS.  •  535 

may  maintain  its  pipes  in  the  streets  is  unlimited ;  "  and  such 
limitation  cannot  be  shortened  by  subsequent  legislation.  The 
grant  of  the  right  is  in  perpetuity ;  "^  and  such  is  the  pre- 
sumption.'^" 

§484.     Termination  of  life  of  corporation  before  expiration   of 
franchise. 

Strictly  speaking,  a  franchise  expires  with  the  corporation ; 
but  instances  have  occurred  where  grants  of  rights  and  privi- 
leges have  been  made  to  gas  companies  for  a  length  of  time  that 
exceeded  its  corporate  life;  and  some  difficulties  have  arisen  on 
that  score.  In  an  instance  of  that  kind  an  ordinance  was  held 
not  to  be  void.  In  the  instance  referred  to  the  grant  was  to 
the  company  or  its  assigns ;  and  the  ordinance  provided  that 
the  company  might  transfer  all  of  its  rights,  privileges,  prop- 
erty and  franchise  conferred  by  it  to  any  organized  gas  com- 
pany which  should,  within  twenty  days  after  the  transfer,  file 
its  written  acceptance  of  the  ordinance's  terms  and  give  bond 
for  the  performance  of  all  the  agreements  required  of  the  origi- 
nal company.  The  grant  extended  beyond  the  limit  of  the 
corporate  existence ;  but  the  contract  with  the  city  was  upheld. ''" 
But  such  an  ordinance  cannot  prolong  the  life  of  the  corpora- 
tion, it  being  construed  as  a  valid  contract  only  so  long  as  the 
company  has  a  corporate  existence,  as  fixed  by  the  statute  or 
original  articles  of  incorporation.'* 

§485.     Consolidation  of  g-as  companies. 

Statutes  may  authorize  two  or  more  gas  companies  to  con- 
solidate ;  and  when  consolidated  the  new  companies  become 
vested  with  all  the  rights  of  the  consolidating  companies,  and 

70  People  V.  Deenan.  153  X.  Y.  '^3  State  v.  Laclede  Gaslight  Co., 
528;  47  N.  E.  Rep.  787;  11  N.  Y.  102  Mo.  472;  14  S.  W.  Rep.  974; 
App.  Div.  175;  42  N.  Y.  Supp.  1071.  15  S.  W.  Rep.  383;  22  Am.  St.  Rep. 

71  People  V.  O'Brien,  111  N.  Y.  1;  789. 

18  N.  E.  Rep.  692.  Testate  v.   Payne,    129   Mo.   468; 

72  Suburban  Electric  Light,  etc..  31  S.  W.  Rep.  797;  33  L.  R.  A.  576. 
Co.  V    East  Orange   (N.  J.  Ch.),  41 

Atl.  Rep.  865. 


636  ,  OIL    AND    GAS. 

become  bound  by  all  the  duties  and  obligations  imposed  on 
them  bj  the  statute  or  by  the  several  ordinances  granting  them 
rights  to  furnish  the  municipality  and  its  inhabitants  with 
e-as.''^  But  a  statute  authorizing  a  consolidation  of  two  or 
more  companies  does  not  authorize  an  existing  company  to  con- 
solidate with  a  company  of  individuals  not  yet  incorporated  as 
a  company.'*^  The  ordinance  by  which  a  company  is  author- 
ized to  occupy  the  streets  may  be  such  as  to  forbid  a  consolida- 
tion with  another  company.  Thus  where  the  grant  was  upon 
the  condition  that  the  company  would  not  enter  into  any  com- 
bination with  another  company  with  respect  to  rates  to  be 
charged  for  gas,  it  was  held  that  an  agreement  with  another 
company  in  the  city  for  a  division  of  the  territory  to  be  lighted 
was  a  violation  of  the  dondition  in  the  ordinance,  although  not 
such  a  breach  as  to  work  a  forfeiture  of  the  right  to  lay  pipes 
in  the  streets  named  in  the  grant. '^  An  agreement  of  two 
gas  companies  to  divide  the  territory  between  them,  where  their 
respective  grants  cover  the  same  ground  and  not  to  invade  each 
other's  separate  territory  is  void,  because  of  public  policy.^^ 

§486.     Town  becoming  a  city. 

If  a  town  has  authorized  a  gas  company  to  occupy  its  streets 
Avith  its  pipes,  and  has  entered  into  a  contract  with  it  for  gas, 
and  afterwards  becomes  a  city,  the  right  of  the  company  to  oc- 
cupy such  streets  is  not  affected  by  the  change,  nor  is  the  con- 
tract annulled.  In  other  words,  the  succession  of  one  munici- 
pality to  the  territory  of  another  does  not  change  the  rights  of 
an  existing  gas  company  in  the  territory.'^'' 

75' People's  Gaslight  and  Coke  Co.  People's  Gaslight  and  Coke  Co.,  121 

V.  Hale.  04  111.  App.  406.     See  Bai-  111.    .5,30;    1,3   N.    E.    Eep.    160;    St. 

ley  V.  Citizens'  Gaslight  Co.,  27  N.  Louis  v.  St.  Louis  Gaslight  Co.,  70 

J.    Eq.    106.  Mo.   69. 

''■6  New  Orleans,  etc.,  Co.  v.  Louis-  to  People    v.    Deehan,     11    N.    Y. 

iana.  etc.    Co.,   11   Fed.  Rep.  277.  App.    Div.    17.5;    42    N.    Y.    Supp. 

77  Detroit  V.  INIutual  Gaslight  Co.,  1071;    reversed    153   N.   Y.   528;    47 

43  Mich.  594;  5  N.  W.  Rep.' 10,39.  N.    E.   Rep.    787;    Grand   Rapids  v. 

78Gibbs  V.   Consolidated  Gas  Co.,  Grand    Rapids    Hydraulic    Co.,    66 

130  U.  S.  306;  0  Sup.  Ct.  Rep.  553;  Mich.  606;  33  N.  W.  Rep.  749. 
Chicago   Gaslight   and   Coke   Co.   v. 


STKEETS    AND    HIGHWAYS.  537 

§487.     Injunction  to  restrain  laying  of  pipes  in  streets. 

It  has  been  held  that  the  laying  of  pipes  in  the  street  is  not 
such  a  nuisance  as  will  authorize  a  court  of  equity  to  restrain 
the  persons  laying  them.*"  But  this  was  a  suit  brought  by  an 
abutting  property  owner  who  did  not  o^vtq  the  fee  in  the  street, 
and  the  obstruction  of  the  street  would  last  only  two  or  three 
days.*^  But  where  there  is  an  invasion  of  private  gi'ounds  ad- 
joining the  street,  an  injunction  will  be  granted  upon  proper 
application.*^  Of  course,  a  municipality  may  always  maintain 
a  suit  to  prevent  a  gas  company  invading  its  streets  and  laying 
down  pipes  therein  without  its  or  the  State's  consent ;  *^  and 
so  may  a  private  land  owner  whenever  the  gas  pipes  will  be 
an  additional  burden  on  the  fee  of  the  highway.*'* 

§488.     Pipe  laid  in  street  unlawfully  laid  out. 

If  a  pipe  line  be  laid  in  a  street  which  has  been  unlawfully 
laid  out,  and  the  proceedings  laying  it  out  are  declared  void 
and  set  aside,  because  of  the  unconstitutionality  of  the  statute 
authorizing  its  laying  out,  the  owner  of  the  pipe  will  not  lose  it 
nor  can  he  be  deprived  of  its  use  by  the  abutting  land  owner, 
if  no  question  concerning  the  validity  of  the  law  was  raised  at 
the  time  the  lands  M'ere  taken  for  the  purpmse  of  a  street.*^ 
The  laying  out  of  the  street  in  such  a  case  will  be  regarded  the 

80  Attorney  General  v.  Cambridge  Gas.  J.  448.  Where  an  action  for 
Consumers'  Gas  Co.,  L.  R.  4  Cli.  damages  would  furnish  adequate 
71;  38  L.  J.  Ch.  94;  19  L.  T.  (N.  relief,  an  injunction  was  refused. 
S.)  508;  17  W.  R.  145,  overruling  Norwich  Gaslight  Co.  v.  Xorwich 
L.  R.  6  Eq.  282;    38  L.   J.  Ch.   94,  City  Gas  Co.,  25   Conn.    19. 

Ill;     17    W.    R.    145;    17    Gas.    Jr.  83  Brooklyn   v.    Fulton   Municipal 

427,   593,   867.  Gas  Co..  7  Abb.  N.  C.  19. 

81  Decision  to  the  same  point.  At-  84  Qoodson  v.  Richardson,  L.  R. 
torney  General  v.  Sheffield  Gas  Con-  9  Ch.  221;  43  L.  J.  Ch.  790;  30 
sumers'  Co.,  3  De.  Gex.  McN.  and  L.  T.  (N.  S.)  142;  22  W.  R.  337; 
G.  304;  17  Jur.  677;  22  L.  J.  Ch.  Selby  v.  Crystal,  etc..  Co..  4  DeG. 
811;  2  Gas.  J.  396,  419;  19  E.  L.  and  F.  and  J.  246;  31  L.  J.  Ch.  595; 
Eq.  639;  1  W.  R.  185.  Otherwise  8  Jur.  (K  S.)  830;  6  L.  T.  (N.  S.) 
if  he  owned  the  fee.  Goodson  v.  790;  10  W.  R.  636. 
Richardson,  L.  R.  9  Ch.  221 ;  43  L.  ss  King  v.  Philadelphia  Co.,  154 
J.  Ch.  790;  30  L.  T.  (N.  S.)  142;  Pa.  St.  160;  26  Atl.  Rep.  308;  21 
22  W.  R.  337;  Deere  v.  Guest,  1  L.  R.  A.  141;  41  Am.  and  Eng. 
My.  and  C.  516;   6  L.  J.  Ch.  69.  Corp.  Cas.  221. 

82  Chapman  v.  Grays'  Gas  Co.,  13 


538  OIL    AND    GAS. 

same  as  if  a  street  that  could  be  lawfully  laid  out  had  been  laid 
out  by  de  facto  officers. 

§489.     Revocation  of  grant. 

The  grant  of  a  privilege,  license  or  franchise,  by  whatever 
name  it  may  be  called,  to  occupy  the  streets  of  a'  municipality 
with  gas  pipes,  for  the  purpose  of  supplying  the  public  with 
gas,  vests  such  a  right  in  the  gas  company  that  the  municipality 
cannot  revoke  or  deprive  it  of  such  grant,  unless  it,  by  its 
course  of  action,  has  laid  itself  liable  to  a  decree  of  forfeiture. 
The  grant,  when  accepted,  and  especially  after  its  terms  have 
been  complied  with,  becomes  a  contract  protected  by  the  Fed- 
eral Constitution.**'  The  only  way  it  can  be  deprived  of  such 
a  gTant  is  for  cause,  and  by  due  legal  process. ^^  "  The  privi- 
lege of  the  use  of  the  public  streets  of  a  city  or  town,  when 
granted  by  ordinance,^s  not  alwaj^s  a  mere  license,  and  re- 
vocable at  the  pleasure  of  the  municipality  granting  it;  for  if 
the  gi"ant  is  for  an  adequate  consideration,  and  is  accepted  by 
the  grantee,  then  the  ordinance  ceases  to  be  a  mere  license,  and 
becomes  a  valid  and  binding  contract.  And  the  same  result  is 
reached  where,  in  case  of  a  mere  license,  it  is,  prior  to  its 
revocation,  acted  upon  in  some  substantial  manner,  so  that  to 
revoke  it  would  be  inequitable  and  unjust."  *^  Such  an  ordi- 
nance cannot  be  repealed.*^ 

80  Louisville   Gas  Co.  v.  Citizens'  ss  Chicago,  etc.,  Co.  v.  Lake,   130 

Gas  Co.,  115  U.  S.  683;   6  Sup.  Ct.  111.  42;   22  N.  E.  Rep.   616;   affirm- 

Rep.  '  265 ;     Gibbs    v.    Consolidated  ing  24  111.  App.  346 ;  Illinois  Trust, 

Gas  Co.,  130  U.  S.  396;   9  Sup.  Ct.  etc..  BanK  v.  Arkansas  City,  76  Fed. 

Rep.  553;    People's   Gaslight  Co.  v.  Rep.  271;   22   C.   C.  A.    171;   40  U. 

Hale.  94  111.  App.  406;  Walla  Walla  S.  App.  257;  34  L.  R.  A.  518;  State 

V.  Walla  Walla  Water  Co.,   172  U.  v.    Laclede    Gaslight    Co.,    102    Mo. 

S.  1;  19  Sup.  Ct.  Rep.  77;  affirming  472;    14  S.  W.  Rep.  974;    15  S.  W. 

00    Fed.    Rep.    957;    Chicago,    etc..  Rep.  383;   22  Am.  St.  Rep.  789. 

Co.v.  Lake,   130  111.  42;   22  N.  E.  so  People  v.  Kent    (111.),   12  Nat. 

Rpp.    616;     affirming    24    111.    A^.  Corp.  Rep.  193. 

346 ;   Southwest  Missouri  Light  Co.  Notice  of  an  intention  to  revoke 

V.  Joplin,   113  Fed.  Rep.   817.  its    rights    to    the    streets    must    be 

87  People    V.    Deehan,    153    N.    Y.  given  to  a  gas  company  before  the 

528;   47   N.  E.  Rep.   787;   reversing  revocation  takes  place.    Jersey  City. 

11   N.  Y.  App.  Div.   175;   42  N.  Y.  etc..   Co.  v.   Passaic    (N.  J.  L.),   52 

Supp.    1071.  Atl.  Rep.  242. 


STREETS    AND    HIGHWAYS. 


539 


§490.     Forfeiture  of  right  to  occupy  streets  for  failure  to  per- 
form duty. 

There  is  no  doubt  of  the  right  of  a  city  to  enforce  a  forfeiture 
of  the  right  of  a  gas  company  to  occupy  its  streets  Avith  its 
pipes  on  a  continued  faihire  to  comply  with  its  agreement.  A 
single  instance  of  failure  would  not,  of  course,  be  sufficient,  al- 
though it  might  give  a  right  of  action  to  recover  damages ;  but 
a  continued  failure  will  be.  An  illustration  of  this  can  be 
found  in  the  case  of  a  water  company,  where  the  court  was  of 
the  opinion  that  a  city  might  enforce  a  forfeiture  for  a  con- 
tinued failure  to  supply  wholesome  water  in  a  sufficient  quan- 
tity, even  independent  of  a  provision  in  the  contract  and  ordi- 
nance that  the  exclusive  franchise  granted  should  be  forfeited 
for  such  cause.""  A  promise  on  the  part  of  the  company  to 
do  better  in  the  future  is  no  defense.®^ 

§491.     Actions  to  declare  forfeiture. —  Quo  warranto. 

There  is  not  such  a  uniformity  in  the  decisions  with  refer- 
ence to  the  enforcement  of  a  forfeiture  of  a  franchise  because 


90  Palestine  Water,  etc..  Co.  v. 
Palestine,  91  Tex.  540;  44  S.  W. 
Pvep.  814;  affirming  41  S.  W.  Rep. 
659. 

See  where  the  word  "  pure  "  in  a 
statute  was  construed  to  be  "  whole- 
some "  with  respect  to  water.  Com- 
monwealth V.  Towanda  Water 
Works  (Pa.),  15  Atl.  Rep.  440. 
Sand  in  water  damaging  elevators, 
liability  to  damages.  Scottish, 
etc.,  Co.  V.  Toronto,  24  Ont.  App. 
208. 

91  Capital  Water  Co.  v.  State, 
105  Ala.  406;  18  So.  Rep.  62;  29 
L.  R.  A.  743. 

The  owner  of  a  franchise  to  lay 
pipes  m  the  streets  of  a  city,  con- 
tracted with  another  to  form  a 
gas  company,  the  owner  to  furnish 
the  franchise  and  the  other  to  fur- 
nish   all    the    money    to    build    the 


plant  and  lay  the  pipes.  After 
such  other  person  had  laid  some  of 
the  pipes,  he  abandoned  the  work. 
It  was  held  that  since  the  pipes  had 
become  attached  to  the  casement  be- 
longing to  its  owner,  such  owner 
became  the  owner  by  reason  of  the 
abandonment,  and  such  other  per- 
son had  lost  all  rights  in  the  pipes. 
Joliet  Gaslight  Co.  v.  Sutherland, 
68  111.  App.  2.30.  The  same  line 
of  reasoning  would  lead  to  the  con- 
clusion that  the  gas  company  would 
also  lose  its  rights  to  remove  its 
pipes,  if  it  was  to  abandon  the  en- 
terprise before  its  completion ;  and 
perhaps  where  a  forfeiture  was  de- 
clared. Qucere,  if  such  were  the 
case,  would  the  city  or  abutting 
property  owners  become  the  owners 
of  the  pipes? 


540  OIL    AND    GAS. 

of  a  violation  of  a  contract  with  a  municipality  as  is  desirable. 
In  Michigan  a  petition  for  leave  to  fil6  an  information  in  the 
nature  of  a  quo  warranto  to  declare  a  forfeiture  of  a  franchise 
of  a  gas  company,  on  the  ground  that  it  had  failed  to  keep  its 
contract  with  the  city  was  refused ;  the  court  declaring  that  the 
right  under  the  contract  to  occupy  the  streets  with  gas  pipes 
was  a  mere  license,  and  one  in  which  the  State  had  no  concern, 
its  violation  being  merely  a  matter  between  the  company  and 
the  city.°"  A  similar  decision  was  made  in  New  York."^  But 
there  are  a  number  of  instances  where  it  is  held  that  the  State 
may  bring  the  suit  to  have  the  charter  declared  forfeited  be- 
cause of  a  persistent  violation  of  the  company's  contract  with 
the  city."*  In  one  case  it  was  also  held  that  the  fact  of  the 
city  having  the  power  to  proceed  against  the  company  for  in- 
fractions of  its  duty,  which  was  enforced  by  its  charter  and 
the  contract,  was  not  a  bar  to  the  State  to  bring  an  action  be- 
cause of  such  infractions."^  And  the  reverse  of  this  was  held 
where  the  city  brought  the  suit  to  amend  the  contract  because 
of  the  violation  of  its  terms.""  ISTo  doubt  the  State  may  bring 
an  action  to  have  a  forfeiture  declared  in  all  those  instances 
where  the  company  is  guilty  of  a  violation  of  the  laws  of  the 
State,  aside  from  the  violation  of  its  contract  with  or  grant 
from  the  municipality ;  for  such  is  a  violation  of  the  general 
corporation  laws."^  Such  is  an  instance  where  a  statute  fixes 
the  price  at  which  gas  must  be  supplied;"^  or  where  it  has 
usurped  the  exclusive  privilege  of  furnishing  gas  in  a  city  in 

92  People  V.  Mutual  Gaslight  Co.,  oe  Palestine  Water,  etc.,  Co.  v. 
38  Mich.    154.  Palestine,    91    Tex.   540;    44    So.   W. 

93  People  V.  Bowen,  30  Barb.  24;  Rep.  814;  affirming  41  S.  W.  Rep. 
affirmed  21  N.  Y.  517.  659. 

94  Capital  City  Water  Co.  v.  ot  state  v.  Cincinnati,  etc.,  Co., 
State.  105  Ala.  406;  18  So.  Rep.  62;  18  Ohio  St.  262;  State  v.  Colum- 
29  L.  R.  A.  743;  Commonwealth  v.  bus,  etc.,  Co.,  34  Ohio  St.  572;  State 
Towanda  Water  Works  (Pa.),  15  v.  New  Orleans,  etc.,  Co.,  2  Rob. 
Atl.  Rep.  440;  State  v.  JanesvilTe,  (La.)  529;  Wandsworth,  etc.,  Co.  v. 
etc.,  Co.,  92  Wis.  496;  66  N.  W.  Wright,  19  Gas.  J.  407;  18  W.  R. 
Rep.  512.  728. 

95  Capital  City  W^ater  Co.  v.  98  state  v.  Columbus,  etc.,  Co., 
State,  105  Ala.  406;  18  So.  Rep.  62;  supra. 

29  L.  R.  A.  743. 


STREETS    AND    HIGHWAYS.  541 

violation  of  a  statute.^''  The  State  may,  however,  by  its  con- 
duct or  acquiescence  be  estopped  to  question  the  right  of  the 
company  to  continue  as  a  corporation ;  especially  so  where  the 
illegal  acts  took  place  long  time  before  —  as  eight  years  for 
instance  —  and  where  some  of  the  present  stockliolders  were 
guilty  of  abetting  such  violation/*"*  A  pretended  sale  of  all 
the  company's  property  will  not  deprive  the  State  of  its  right 
to  forfeit  its  charter,  even  in  the  hands  of  the  vendee,  for  a 
failure  to  perform  a  corporate  duty.^°^ 

§492.     Waiver  of  right  to  declare  forfeiture. 

By  its  course  of  conduct  a  municipality  may  waive  its  right 
to  declare  a  forfeiture  for  failure  to  comply  with  the  terms  of 
a  contract,  just  as  it  may  be  estopped  to  have  a  void  contract 
set  aside.  Thus  where  a  city  in  an  ordinance  gTanting  a  fran- 
chise provided  that  if  certain  things  should  not  be  done  within 
fifteen  months  the  company  should  forfeit  its  rights,  it  was 
considered  that  the  city  had  waived  any  forfeiture  by  recog- 
nizing the  ordinance  in  force  after  the  fifteen  months,  by  main- 
taining its  own  wires  wpon  the  electric  company's  poles,  in 
assessing  and  collecting  taxes  on  the  franchise  granted,  and  in 
failing  to  set  up  a  claim  of  forfeiture  in  a  number  of  suits 
brought  by  the  company  against  it  to  enforce  certain  rights 
given  by  the  contract. ^*'" 

§493.     Changing  grade  of  street. 

The  fact  that  a  contemplated  change  of  the  grade  of  a  street 
will  interfere  with  the  gas  company's  pipes  does  not  prevent  the 

99  State  V.  Milwaukee  Gaslight  authorize  a  decree  of  forfeiture,  al- 
Co..  29  Wis.  454.  though   it   may  be  grounds  for  con- 

100  State  V.  Janesville  Water  tempt  proceedings.  Newark  v.  Xew- 
Power  Co.,  92  Wis.  496;  66  X.  W.  ark  W.  W.  Co..  4  Ohio  X.  P.  341; 
Rep.    512.  6  Onio  Dec.  518. 

101  City  Water  Co.  v.  State.  88  102  Commercial,  etc.,  Co.  v.  Ta- 
Tex.  600;  32  S.  W\  Rep.  1033;  33  coma,  17  Wash.  661;  50  Pac.  Rep. 
S.   W.  Rep.  259.  592.     See    Walla    Walla    v.    Walla 

A  violation  of  an  injunction  Walla  Water  Co.,  172  Fed.  Rep.  1 : 
against  the  enforcement  of  unrea-  19  Sup.  Ct.  Rep.  77,  affirming  60 
sonable    rules    is    not    sufficient    to       Fed.  Rep.  957. 


542  OIL     AND    GAS. 

change,  nor  lay  the  city  liable  fur  damages  to  the  company 
occasioned  therehy.  Xor  is  the  city  liable  to  the  company  for 
the  expense  incurred  in  lowering  or  otherwise  changing  its  pipes 
so  as  to  conform  to  the  new  grade/"'^  Xor  can  the  gas  com- 
pany impose  wpon  adjacent  lot  owners,  the  expense  it  has  in- 
curred in  taking  up  and  relaying  its  pipes,  required  by  a  change 
of  grade ;  it  must  make  such  changes  at  its  own  cost.^''*  If  it 
is  necessary  to  place  drainage  pipes  or  sewers  in  the  street,  the 
municipal  authorities  may  compel  the  company  to  raise  or  lower 
its  pipes,  if  such  action  be  necessary  to  secure  a  proper  loca- 
tion for  theni/"^  Under  a  statutory  power  to  contract  for  light- 
ing of  its  streets  upon  such  terms  and  conditions  as  it  shall 
deem  expedient,  a  city  is  empowered  to  agree,  in  the  original 
grant  of  a  franchise,  that  it  will  reimburse  the  gas  company 
for  all  damages  occasioned  it  by  a  change  in  the  grade  of  a 
street."'  ^ 

§494.     Tearing  up  streets. —  Obstructions. — Indictment. 

Xo  one  can  open  streets  and  lay  down  pipes  Avith  which  to 
supply  the  inhabitants  of  the  municipality  with  gas  or  water 
unless  authorized  so  to  do.  If  he  do  so,  without  proper  au- 
thority he  is  subject  to  indictment  and   punishment. ^'^"      If  a 

103  Belfast   Water   Co.  v.   Belfast,  [1898],    2    Ch.    603;    67    L.    J.    Ch. 

9-Z  Me.  52;  42  Atl.  Rep.  235;  Colum-  657;   79  L.  T.  132;   47  W.  R.   107; 

bus,  etc.,  Co.  V.  Columbus,  50  Ohio  62  J.  P.   756. 

St.  65;  33  N.  E.  Rep.  292;   19  L.  R.  los  Bryn     Mawr     Water     Co.     v. 

A,   510;   Jamaica  Pond,  etc.,  Co.  v.  Lower  Marion  Tp.,    15   Pa.   Co.   Ct. 

Brookline,    121    Mass.    5;    Roanoke  Rep.  527;   4  Pa.  Dist.  Rep.   157. 

Gas    Co.   V.    Roanoke,    88   Va.   810;  loe  Parfitt   v.   Furgason,   3   N.   Y. 

14    S.    E.    Rep.    665;    Brenham    v.  App.   Div.    176;    73   N.   Y.   St.   Rep. 

Brenham   Water   Co.,   67   Tex.   543;  621;   38  N.  Y.  Supp.  466;  affirming 

4  S.  W.  Rep.  143;   National  W.  W.  159  N.  Y.  Ill;   53  N.  E.  Rep.  707. 

Co.    V.    Kansas    City,   20    Mo.    App.  lo-  Attorney   General    v.    Sheffield 

237;    National    W.   W.   Co.   v.   Kan-  Gas    Consumers'    Co..    3    De    G.    M. 

sas  City,   28   Fed.   Rep.  921;    ^.ock-  and   G.   304;   22  L.  J.   Ch.  811;    17 

land  W.  W.  Co.  v.  Rockland,  83  Me.  Jur.  677;    1  W.  R.   185;   2  Gas.  Jr. 

267;  22  Atl.  Rep.  166.  396,  419;   19  Eng.  L.  and  Eq.  639; 

104 /n  re  Deering,  93  N.  Y.   361;  Regina  v.  Sheffield  Gas  Consumers' 

Pocatello    Water    Co.    v.     Standley  Co.,    18   Jur.    146,   note;    Regina   v. 

(Idaho),  61   Pac.  Rep.  518;    Soutli-  Longton  Gas.  Co.,  2  E.  and  E.  651; 

vrark,     etc.,     Co.     v.     Wandsworth  29  L.  J.  M.  C.  118;  6  Jur.    (N.  S.) 


STREETS    AXD    HIGHWAYS,  543 

company  open  more  streets  than  is  necessary,  at  any  one  time, 
it  may  be  indicted ;  but  if  it  has  agreed  to  pay  the  municipality 
so  much  per  square  yard  for  all  of  the  surface  removed,  it 
cannot  defend  on  the  ground  that  in  so  doing  it  was  liable  to 
indictment  and  therefore  the  agreement  was  void/''^  It  is  not 
an  indictable  nuisance  to  temporarily  obstruct  a  street  in  lay- 
ing down  pipes  under  authority  given. ^^'^  But  where  the  high- 
way was  eight  yards  wide,  and  the  gas  company  dug  three 
trenches,  two  across  it  and  one  parallel  with  it,  these  three 
trenches  being  kept  open  at  night  but  closed  at  three  o'clock  in 
the  morning;  and  later  other  trenches  were  opened  from  eleven 
at  night  until  two  o'clock  next  afternoon,  it  was  held  that  the 
company  was  liable  to  an  indictment  for  unnecessarily  ob- 
structing  a  highway/^**  And  where  a  gas  company  had  no  au- 
thority to  lay  its  pipes  in  the  street,  an  abutting  property  owner 
who  took  up  the  pavement,  placed  bricks  and  earth  therein,  so 
as  to  obstruct  the  highway,  to  put  in  a  service  pipe,  was  held 
subject  to  an  indictment,  and  that  he  could  not  justify  his 
actions  on  the  ground  that  every  householder  had  the  right 
to  make  such  temporary  obstruction  of  a  footway  or  highway 
as  was  necessarily  incident  to  the  enjoyment  of  his  property/^^ 

§495.     Cutting  into  modern  pavements. —  Repairs. —  Permission. 

The  gTant  of  a  right  by  a  municipality  to  lay  and  repair 
mains  in  its  streets  cannot  be  subsequently  taken  away  from  it 
on  the  ground  that  new  and  other  methods  of  improving  the 
streets  have  been  introduced  since  the  original  grant  has  been 
made ;   and  especially  is  this  true  where  the  grant  bound  the 

601;   2  L.  T.    (N.   S.)    14;    8  W.  R.  But  see  Hawkins  v.  Robinson.  37  J. 

293;    8    Cox    C.    C.    317;    Attorney  P.    662,   and    Wright   v.    Stears,    48 

General    v.    Cambridge    Consumers'  Gas  J.   1068. 

Gas.  Co.,  L.  R.  4  Ch.  71;   38  L.  J.  no  Regina    v.    Colne    Valley    Gas 

Ch.  04;    19  L.  T.    (N.  S.)    508;    17  Co..   29   Gas.   J.   498,   781;    30   Gas. 

W.  R.    145.  J.    218. 

los  Edgeware    Highway    Board    v.  m  Regina  v.  Longton  Gas  Co..  2 

Harrow  District  Gas  Co.,  L.  R.   10  Ell.  and  Ell.  651;   2  L.  T.    (N.  S.) 

Q.  B.  92;  44  L.  J.  Q.  B.  1;  31  L.  T.  14;  8  Cox  C.  C.  317;  29  L.  J.  M.  C. 

(N.  S.)   402;  23  W.  R.  90.  118;   8  Gas.  .J.  165;   9  Gas.  J.  114; 

100  Preston    v.     Fullwood,    supra.  G  .Jur.   (X.  S.)   601;  8  W.  R.  293. 


544  OIL    AND    GAS. 

company  to  speedily  repair  the  portions  of  the  street  it  liad 
opened  for  the  purpose  of  laying  and  repairing  its  mains.  Nor 
can  a  municipality  by  a  subsequent  ordinance  require  a  com- 
pany to  first  obtain  permission  of  it  to  lay  or  repair  its  mains, 
when  it  had  that  right,  without  first  obtaining  such  permission, 
under  its  original  grant  or  franchise.  "  The  appellee,"  said  the 
Indiana  Supreme  Court,  "  had  been  granted  the  right  to  use 
the  streets  for  the  purpose  mentioned,  and  the  mere  fact  that 
any  particular  street  was  thereafter  paved  with  brick  or  maca- 
dam would  not  deprive  appellee  of  exercising  its  rights  under 
the  ordinance  upon  which  it  relies.  This  is  manifest  when 
we  recognize  that  the  conditions  of  the  bond  required  of  the 
corporation  availing  itself  of  the  franchise  gi'anted  were,  that 
all  streets  should  be  restored  to  as  good  a  condition  as  they  were 
before,  and  to  maintain  the  pavement  in  good  repairs  where 
the  city  had  an  agTcement  with  the  contractor  to  like  effect. 
As  said  by  the  learne?^  counsel  for  appellee :  '  If  a  macadam- 
ized pavement  covers  up  the  appellee's  rights,  so  would  one 
constructed  of  gravel,  and  so  would  even  slight  repairs,  for 
the  conditions  of  the  streets  would  be  changed  from  what  it  was 
when  the  ordinance  was  accepted.'  It  is  evident,  we  think,  that 
the  contention  has  no  support."  Of  the  ordinance  requiring 
permission  of  the  city  board  of  w^orks  before  a  pavement  would 
be  cut  into  for  repairs,  the  court  also  said :  "  We  judicially 
know  that  by  reason  of  changes  occurring  from  extensive  heat, 
cold  and  pressure,  leaks  will  and  do  occur  in  gas  pipes,  Avhich 
require  immediate  repair.  If,  then,  it  should  be  held  that  in 
making  these  repairs  —  wherein  it  would  be  necessary  to  un- 
cover the  mains  —  the  appellee  must  await  the  pleasure  of  the 
council  and  board  of  aldermen  in  giving  consent,  it  would  be 
virtually  in  the  same  condition  as  though  it  had  not  secured 
■the  rights  and  franchise  under  "  the  prior  ordinance.^^"  So 
an  ordinance  forbidding  £i  gas  company  to  excavate  in  a  paved 

112  Indianapolis  v.  Consumers'  See  Western  Paving,  etc.,  Co.  v. 
Gas  Trust  Co.,  140  Ind.  107;  39  Citizens',  etc.,  Co.,  128  Ind.  525;  26 
N.  E,  Rep.  433;   27  L.  R.  A.  514.       N.  E.  Rep.  188;  28  K  E.  Rep.  88. 


STREETS    AXD    HIGHWAYS.  545 

street  in  order  to  lay  pipes  from  its  mains  to  the  opiposite  side 
of  the  street  is  so  unreasonable  as  to  be  void."^ 

§496.     Injury  to  pipes  in  repairing  streets. 

A  municipality  has  the  right  to  repair  the  streets  in  which 
gas  pipes  are  lawfully  laid,  but  it  must  in  doing  so  have  a  just 
i-egard  for  the  property  of  the  gas  company.  It  may  not  re- 
pair them  in  a  manner  to  injure  such  pipes,  when  at  least  the 
repairs  can  be  so  made,  although  in  a  less  convenient  way. 
Thus  where  the  fee  of  the  street  was  vested  in  the  vestry  of  the 
parish,  the  pipes  were  lawfully  located  in  the  street,  and  in  re- 
pairing them  it  used  a  steam  roller,  being  a  mode  of  repair 
most  advantageous  to  Ixjtli  the  taxpayers  and  the  public,  but 
the  roller  was  so  heavy  as  to  injure  the  pij^es ;  the  court  not 
only  gave  damages  to  the  gas  company,  but  declared  that  it  was 
entitled  to  an  injunction  to  restrain  the  use  of  the  roller  in 
such  a  way  as  to  injure  the.  pipes. ^^*  In  Ireland  an  injunction 
was  entered  "  against  using  any  steam  roller  on  any  road  under 
which  the  gas  pipes  of  the  plaintiffs  have  been  laid  so  as  to 
break  or  injure  any  pipes  then  properly  laid  under  such  road, 
regard  being  had  to  what,  at  the  time  of  the  laying  of  such 
pipes,  was  then  the  ordinary  traffic,  and  the  then  reasonable 
means  of  repairing  and  maintaining  the  road."  ^^^  If  a  city 
let  a  contract  to  construct  a  sewer  to  a  contractor  it  knows  to 
be  incompetent,  it  will  be  liable  for  damages  to  a  gas  company's 
pipes  which  he  may,  because  of  such  incompetency,  occasion 
them.^^*'  But  the  city  is  not  liable  where  it  builds  a  sewer 
itself,  and  injures  the  pipes  of  a  company,  if  the  injury  is  not 

113  Northern  Liberties  v.  Xorth-  See  49  Gas  Jr.  765,  811;  50  Gas  Jr. 
ern   Liberties   Gas   Co.,    12    Pa.    St.       1018. 

318.  Where    a    hea^'y    roller    broke    a 

114  Gaslight  and  Coke  Co.  v.  Ves-  gas  main,  whereby  gas  escaped  into 
try  of  St.  IVIary.  15  Q.  B.  Div.  1 ;  a  house  and  caused  an  injury,  it 
54  L.  J.  Q.  B.  414 ;  53  L.  T.  457 ;  33  was  held  that  there  was  evidence  of 
W.  R.  8^2;  49  J.  P.  459.  negligence  against  the  municipality. 

115  Alliance,  etc..  Gas  Co.  v.  Dub-  Driscoll  v.  Public  Board  of  Works, 
lin.      Gas      Jr..      June      26.      1900,  14   f.  L.  Rep.  99;  62  J.  P.  40. 

p.  1733,  and  July  10,  1900,  p.  100.  noXorwalk  Gaslight  Co.  v.  Nor- 

walk,  63  Conn.  495;  28  Atl.  Rep.  32. 


546  OIL    AND    GAS. 

inflicted  because  of  negligence  on  its  part."^  Where  a  gas 
company,  in  ignorance  of  the  true  location  of  its  pipe  line  in 
a  certain  street,  though  both  its  bookkeeper  and  collector  told 
a  street  railway  it  was  in  the  middle  of  such  street,  the  book- 
keeper and  collector  believing  the  statement  to  be  true,  and 
the  railway  company  having  made  the  inquiry  in  order  that 
it  might  avoid  laying  its  track  over  such  pipe  line,  all  of  which 
the  gas  company  knew  at  the  time  it  gave  the  supposed  location 
of  its  pipe  line ;  and  thereupon  the  railway  company  laid  its 
track  on  one  side  of  the  street  but  immediately  over  the  pipe 
line,  being  misled  by  such  statements  as  to  its  true  location, 
it  was  held  that  the  gas  company  was  not  estopped  to  take 
up  its  pipe  in  order  to  repair  it,  although  in  so  doing  it  had  to 
remove  the  track  of  the  railway  company.  The  court  did  not 
consider  that  the  bookkeeper  and  collector  were  such  agents  as 
to  make  their  statements  about  the  location  of  the  pipe  line 
binding  upon  the  gasj^ompany.  It  was  declared,  though,  that 
it  was  the  gas  company's  "  duty  to  know  the  precise  location 
of  their  pipes,  and  to  be  able  to  give  correct  information  con- 
cerning the  same  to  those  who  had  a  right  to  demand  it ;  and 
if  a  gas  company  wrongly  represents  the  location  of  its  pipes, 
so  as  to  lead  a  railway  company  to  lay  its  track  over  them  when 
it  was  seeking  to  avoid  them,  then  such  company  would  be 
estopped  from  claiming  the  right  to  disturb  the  track,  even 
though  the  gas  company  was  mistaken  in  regard  to  the  location 
of  the  pipes  at  the  time  the  representations  were  made."  ^^^ 

§497.     Support  of  gas  mains. 

If  a  company  has  a  right  to  lay  its  pipes  in  a  street,  it  has 
a  right  to  a  supjxirt  for  them  of  the  underlying  soil ;  and  if 
the  owner  of  the  underlying  soil,  or  any  one  mining  therein, 

117  Brunswick     Gaslight     Co.     v.  which    has    been    established    under 

Brunswick,    92    Me.    493;    43    Atl.  authority   of  law.     Boyer   v.   Little 

Rep.   104.                                     "  Falls,  5  X.   Y.  App.    Div.  1;   38  N. 

A  city  in  putting  in  its  own  gas  Y.  Supp.  1114. 

works    is    liable    for    trespass    if   it  us  Davenport,     etc.,     Ry.     Co.    v. 

interfere  with  and  injure  a  private  Davenport  Gaslight  Co.,  43  la.  301. 
system    for    supplying   gas    therein, 


STREETS    AND    HIGHWAYS.  54:7 

even  with  a  right  so  to  do,  take  away  such  support  and  injure 
the  pipes,  he  will  be  liable  in  damages ;  and  that,  too,  even 
though  he  is  entitled  to  damages  under  an  arbitration  proceed- 
ing for  the  extra  burden  of  the  pipes  upon  the  fee  of  the  high- 
way. What  is  true  of  one  occupying  the  highway,  is  also  true 
of  one  rightfully  occupying  a  private  right  of  way.^^^  But 
if  the  gas  company  has  laid  its  pipe  line  in  the  soil  of  another 
without  license  so  to  do,  then  it  is  not  entitled  to  support ;  nor 
to  compensation  in  dainages  for  a  failure  to  give  it.^'" 

§498.     Gas  boxes  in  street. 

A  gas  box  in  the  street,  giving  access  to  a  cock  in  the  service 
pipes  conducting  gas  from  the  main  to  the  house  or  building 
supplied  with  gas,  is  a  part  of  the  company's  apparatus ;  and 
although  lawfully  in  the  street,  the  company  is  bound  to  exercise 
care  to  prevent  injury  to  persons  using  the  street  or  sidewalk.^^^ 
The  court,  however,  cannot  say  as  a  matter  of  law  that  a  box 
seven  and  a  half  inches  long  and  five  and  a  quarter  wide,  by 
one  and  a  half  high,  extending  one  and  a  half  inches  into  the 
traveled  portion  of  a  sidewalk  is  not  a  nuisance,  in  the  absence 
of  any  evidence  showing  the  exigencies  of  public  travel  in  the 
street.^'" 

§499.     Leaving'  gasposts  in  streets. 

When  gas  posts  are  no  longer  used,  it  is  the  duty  of  the  gas 
company  to  remove  them,  for  they  are  an  obstruction  in  the 

119  Normanton  Gas  Co.  v.  Pope,  from  the  company  the  amount  of 
52  L.  J.  Q.  B.  629;  32  W.  R.  134;  damages  it  had  been  compelled  to 
49  L.  T.  798.  See  Benfieldside  L.  pay  a  person  injured  by  reason  of 
B.  V.  Consett  Iron  Co..  3  Exch.  Div.  the  company  having  permitted  the 
54;  47  L.  J.  Exch.  491;  38  L.  T.  gas  box  to  get  out  of  repair.  In 
530;  26  W.  R.  114.  England     apparatus     of    this    kind 

120  Middle,  etc..  Co.  v.  Oakbank  seems  to  belong  to  the  consumer. 
Oil  Co.,  18  Ct.  Sess.  Cas.,  4th  Series  Ward  v.  Folkstone  W.  W.  Co.,  24 
788.  Q.  B.  Div.  334;   59  L.  J.  M.  C.  65; 

121  Washington  Gaslight  Co.  v.  62  L.  T.  321;  38  W.  R.  426;  54  J. 
District  of  Columbia,  161  U.  S.  P.  628;  Folkstone  v.  Downing, .  54 
316;     16     Sup.     Ct.    Rep.     564;     24  Gas.    J.    313. 

Wash.    L.    Rep.    470,    affirming    20  122  Staples    v.     Dickson,     88    Me. 

D.  C.  39.     In  this  case  the  consumer  362 ;     34    Atl.    Rep.     168.     But    see 

paid  the  cost  of  putting  in  the  box.  Loan  v.  Boston,  106  Mass.  450. 
The    city    was    allowed    to    recover 


548  OIL    AND    GAS. 

street.  A  gas  compariy  has  the  right  to  maintain  gas  posts  in 
a  street  solely  by  reason  of  the  fact  that  it  supplies  light  for 
the  streets ;  and  Avhen  it  ceases  to  supply  the  light,  it  must  re- 
move its  posts,  or  else  lay  itself  liable  for  such  damages  as 
may  be  occasioned  thereby.^"^ 

§500.     Pipes  in  streets  not  an  additional  burden. 

Pipes  of  a  gas  company  laid  in  the  streets  of  a  municipality 
are  not  an  additional  burden  on  the  fee  of  the  street  for  which 
the  abutting  lot  owner  is  entitled  to  compensation.  Such  a 
burden  is  contemplated,  in  legal  contemplation,  when  the  streets 
are  dedicated,  or  ground  taken  for  them  under  the  power  of 
eminent  domain.^'*  Of  course,  the  duty  to  serve  the  public  is 
always  an  element  underlying  all  grants  of  a  right  to  use  the 
streets ;  and  this  is  considered  the  compensation  that  the  abut- 
ting property  owner  receives  for  the  use  of  his  property. ^^^ 

§501.     Pipes  laid  in  navigable  river. 

Xor  may  a  gas  company  lay  its  pipe  line  on  the  bed  of  a 
navigable  river ;  if  it  desires  to  cross  such  a  stream  it  must 
bury  its  pipe  line  beneath  the  bed  thereof.  Thus  where  a  com- 
pany had  full  power  to  lay  and  maintain  pipes  for  transporta- 

123  New   Orleans    Gaslight    Co.   v.  N.  Y.  Supp.  560;  affirmed  142  N.  Y. 

Hart,  40  La.  Ann.  474;   4  So.  Rep.  626;   37  N.  Y.  Rep.   56.5. 

415.  In    Palmer    v.    Larchmont,    etc., 

.  124  Smith  V.  Goldsboro,  121  N.  C.  Co.,  supra,  it  is  said  that  the  neces- 

350;   28  S.  E.  Rep.  479;   Boston  v.  sity  for  a  light  in  a  highway  was 

Richardson,    13    Allen    160;    Crooke  for  the  municipal  authorities  to  de- 

V.  Flatbush  W.  W.  Co..    29   Hun  245 ;  termine,  and  not  for  the  court  in  a 

West  V.  Bancroft,  32  Vt.  367 ;  Pal-  case  of  ejectment. 

mer  v.  Larchmont,  etc.,  Co.,  158  N.  In   Providence   Gas   Co.   v.   Thur- 

Y.  231;  .52  N.  E.  Rep.  1092   (electric  ber,  2  R.  I.   1.5.  it  was  held  that  a 

light    poles).     See    Columbia    Con-  gas  company  having  an  incorporeal 

duit  Co.  V.   Commonwealth.   90   Pa.  easement  and  not  a  mere  license  in 

St.    307 ;    Quincy   v.    Bull,    ]/)6    111.  the      streets     Avas     estopped     from 

337;    4    Am.    and    Eng.    Corp.    Cas.  claiming  that    its   grant    under   the 

554.  charter   Avas  void,  because   no   com- 

125  Ampt    V.    Cincinnati,    6    Ohio  pensation  was  provided  thereliy  for 

N.     P.     401  :     Witcher    v.     Holland  the    owners    of    the    land    tlirough 

Water  Works  Co.,  66  Hun  619;   20  which   its   pipes   passed. 


STREETS    AXD    HIGHWAYS.  549 

tion  of  gas,  laid  an  eight-inch  main  on  tlie  bottom  of  a  navigable 
river  it  was  crossing;  and  a  steamboat  came  along,  ran  into  the 
pipe  without  fault,  and  broke  it,  and  gas  thereby  escaped,  en- 
tered the  furnaces  of  the  boat  and  exploded,  the  gas  company 
was  held  liable  for  all  damages  occasioned  by  the  explosion  ; 
for  the  pipe  was  wrongfully  placed  on  the  surface  of  the  river 
bed/"'^  If  a  gas  company  has  the  right  to  lay  its  mains  across 
a  river,  it  must  do  so  that  they  will  neither  impede  nor  hinder 
boats  using  such  river;  and  if  it  do  not,  and  the  mains  are 
injured  by  boats  passing  up  and  down  the  river,  the  gas  com- 
pany cannot  recover  damages  for  such  injuries/"'  And  if  a 
gas  main  is  so  laid  in  a  navigable  river  that  it  impedes  naviga- 
tion, a  vessel  caught  in  passing  and  detained  thereby  may  re- 
cover as  damages  the  actual  expense  of  getting  free  from  the 
obstruction,  but  not  for  delay  in  its  business  or  other  conse- 
quential damage/"^ 

§502,      Grant  of  right  to  use  suburban  highway. — Compensation  to 
abutting  land  owner. 

The  owner  of  land  abutting  on  a  rural  highway  has  such  an 
interest  in  it  that  the  legislature  cannot  authorize  gas  companies 
to  lay  their  pipe  lines  in  it  without  providing  a  method  for 
compensating  him  for  all  damages  he  may  suffer  by  reason  of 
the  additional  burden  upon  the  fee.^'^ 

126  Omslear  v.  Philadelphia  Co.,  river  as  to  -work  a  private  (not  a 
31   Fed.   Rep.   354.  public)    injury,  it  will  be  liable  to 

127  Milwaukee  Gaslight  Co.  v.  the  person  injured.  Manhattan 
Schooner  Gamecock,  23  Wis.  144.  Gaslight  Co.  v.  Barker,  7  Robt.  (N. 
See    Municipal    Chamber    of    Ham-  Y.)    523. 

burg    V.    Gas    Company,    5    Gas.    J.  129  Consumers',  etc..  Co.  v.  Hunt- 

710.  singer,   14  Ind.  App.   156;   42  N.  E. 

12s  Benson  v.  Maiden,  etc.,  Co.,  6  Rep.   640;    Kincaid  v.   Indianapolis, 

Allen    149.  etc.,    Co..    124    Ind.    577;    24    N.    E. 

As    to    being    deprived    of    use    of  Rep.   1066;    8  L.   R.  A.  602;    Board 

public  wharf  by  a  gas  company,  see  v.   Indianapolis,   etc..   Co.,    134   Ind. 

Wetmore  v.   Brooklyn  Gaslight  Co.,  209 ;  33  N.  E.  Rep.  972 ;  Krueger  v. 

42  N.  Y.  384;  rent  therefor,  People  \Yisconsin    Tel.    Co.,    106    Wis.    96; 

v., San  Francisco.  54  Cal.  248;    and  81   N.   W.    Rep.    1041;    50  L.   R.   A. 

tolls,    Soule    V.    San    Francisco.    54  298;    Postal    Telegraph    and    Cable 

Cal.    241.  Co.  V.  Eaton,  170  111.  513;  49  N.  E. 

If    a    gas    company    so    befoul    a  Rep.  365. 


550  OIL    AND    GAS. 

§503.     Condemnation  of  land  owner's  interest  in  highway. 

Proceedings  under  the  power  of  eminent  domain,  to  condemn 
the  abutting  L^nd  owner's  fee  in  the  highway,  does  not  affect 
the  right  of  the  public,  uor  give  the  gas  company  the  right  to 
use  the  highway  without  the  consent  of  the  public  authorities. 
In  addition  to  a  judgment  of  condemnation,  the  gas  company 
must  procure  the  consent  of  the  public  authorities  to  use  the 
highway.^"" 

§504.    Land  owner  acquiescing  in  occupation  of  rural  highway. — 
Injunction. —  Estoppel. 

While  an  owner  of  land  abutting  upon  a  rural  or  suburban 
highway  is  entitled  to  compensation  for  the  additional  burden 
imposed  by  the  laying  of  pipe  lines  in  such  highway,  because 
of  the  additional  burden  they  impose  upon  his  land  beneath 
the  easement ;  yet  if  ne  stands  by  and  makes  no  objection  to 
the  laying  of  the  pipes  until  they  are  put  to  an  actual  use,  he 
will  be  estopped  to  then  prevent  their  use.  This  is  espe- 
cially true  if  the  company  laying  the  pipes  is  engaged  in  a 
public  service.  "  There  was  an  assertion  of  a  right  to  use  the 
highway,"  it  was  said  in  one  case,  "  and  the  gas  company  had 
expended  large  sums  of  money  on  the  faith  of  the  license 
granted  to  it  by  the  board  of  commissioners.  It  had  assumed 
to  use  the  highway  for  a  public  purpose,  and  many  citizens 
had  acquired  rights  upon  the  faith  of  the  successful  and  ef- 
fective prosecution  and  conduct  of  the  work  and  business  un- 
dertaken by  the  company.  The  appellant,  with  knowledge  of 
the  facts,  made  no  objection  until  the  completion  of  the  main 
line  and  system,  but  delayed  until  they  had  been  completed 
and  then  asked  an  injunction.  To  grant  the  relief  he  seeks 
Avill,  it  is  clearly  inferable,  seriously  impair  the  rights  of  the 
public  as  well  as  those  of  the  gas  company.  We  are  satisfied 
that  upon  the  case  mad^by  the  evidence,  the  appellant  is  not 
entitled  to  an  injunction.      In  adjudging  that  he  has  no  right 

i-c  Board  v.  Indianapolis,  etc., 
Co.,  134  Ind.  209;  33  N.  E.  Rep. 
072. 


STREETS    AA'D    HIGHWAYS.  551 

to  an  injunction,  we  do  not  hold  that  he  may  not,  in  a  proper 
case,  recover  damages  for  the  invasion  of  his  legal  right.  What 
we  here  decide  is,  that  the  case  made  is  not  one  justifying  resort 
to  the  extraordinary  remedy  of  injunction.  The  effect  of  our 
decision  is  that  he  has  mistaken  his  remedy.  The  work  in 
which  the  gas  company  is  engaged  is  one  in  which  the  general 
community  have  an  interest,  and  to  arrest  the  work  by  injunc- 
tion would  do  great  injury  to  many  citizens.  Persons  other 
than  the  company  have  an  interest,  and  they  are  so  numerous 
that  it  is  the  duty  of  the  courts  to  protect  that  interest  where 
it  can  be  done  without  materially  impairing  the  rigjits  of  any 
private  citizen,  and  that  can  be  done  in  this  instance,  for  the  ap- 
pellant, in  the  appropriate  action  and  upon  making  a  proper 
case,  can  be  fully  comjTensated  for  all  injury  that  he  may  have 
suffered.  There  is  here  an  element  of  public  policy  which  ex- 
erts a  controlling  interest.  The  good  of  the  community  forbids 
that  one  who  occupies  such  a  position  as  the  appellant  does 
should  be  permitted  to  arrest  work  essential  to  the  successful 
discharge  of  the  company's  duty  to  supply  the  community  with 
fuel  in  the  form  of  natural  gas.  Public  policy,  as  has  been 
demonstrated  in  analogous  cases,  requires  that  the  rights  of 
the  community  should  be  protected,  and  the  land  owner  left  to 
his  remedy  at  law.  Xor  does  this  rule  operate  unjustly,  for  the 
land  owner  is  not  deprived  of  compensation ;  on  the  contrary, 
the  right  to  compensation  is  left  open  to  him,  and  it  is  his 
own  fault  if  he  does  not  recover  full  compensation  for  all  the 
loss  he  has  actually  sustained.  Blended  with  the  element  of 
public  policy  is  another  influential  one,  and  that  is  this :  The 
appellant  objecting  knowingly  permitted  the  work  to  proceed 
until  it  reached  a  stage  at  which  it  would  be  ruinous  to  the 
company  which  had  invested  such  large  sums  of  money  to  stop 
it  by  injunction.  These  two  elements,  in  their  combined 
strength,  certainly  make  a  case  in  which  an  injunction  should, 
upon  plain  principles  of  equity,  be  denied."  ^^^     But  the  mere 

131  Kincaid    v.    Indianapolis,    etc.,  285 ;  40  N".  E.  Rep.  34 ;  Consumers', 

Co.,    124   Ind.    577;    24   N.   E.   Rep.  etc.,  Co.  v.  Huntsinger,  14  Ind.  App. 

1066;    8  L.  R.  A.  602;    Consumers'.  156;   42  N.  E.  Rep.  640. 
etc.,  Co.  V.  Huntsinger,  12  Ind.  App. 


552  OIL    AND    GAS. 

fact  tliat  the  owner  of  the  abutting  Land  made  no  ohjection  to 
laying  pipe  lines  in  one  highway  will  not  estop  him  to  object 
to  the  laying  of  a  pipe  line  in  another  highway  upon  which 
his  land  abuts/^'  So  if  the  owner  of  the  fee  did  not  know  of 
the  laying  of  the  pipe  line  in  the  highway  at  the  time  it  was 
laid,  the  mere  fact  that  he  made  no  objections^  after  he  found 
out  the  fact  about  it,  to  the  line  or  its  maintenance  will  not 
estop  him  from   asserting  a  right  to  have  it  removed. ^"^ 

§505.     Pipe  lines  in  country  highway  an  additional  burden  on 
the  fee. 

The  easement  the  public  acquires  in  a  right  of  way  taken 
for  a  country  or  suburban  highway  is  one  solely  of  passage  —  a 
right  to  travel  along  it  —  and  no  other.  ""  Subject  to  the  right 
of  the  public,"  says  the  Supreme  Court  of  Indiana,  ''  the  owner 
of  the  fee  of  a  rural  road  retains  all  rights  and  interest  in  it. 
He  remains  the  owner,  and,  as  such,  his  rights  are  very  com- 
prehensive. .  .  .  The  appropriation  of  the  land  for  a  rural 
highway  did  not  entitle  the  local  officers  to  use  it  for  any  other 
than  highway  piurposes,  although  they  did  acquire  a  right  to  use 
it  for  all  purposes  legitimately  connected  with  the  local  system 
of  highways.  A  use  for  any  other  than  a  legitimate  highway 
purpose  is  a  taking  Avithin  the  meaning  of  the  Constitution, 
inasmuch  as  it  imposes  an  additional  burden  upon  the  land,  and 
whenever  land  is  subject  to  an  additional  burden  the  owner  is 
entitled  to  additional  compensation.  The  authorities,  although 
ilot  very  numerous,  are  harmonious  npon  the  proposition  that 
laying  gas  pipes  in  a  suburban  road  is  the  imposition  of  an  ad- 
ditional burden,  and  that  compensation  must  be  made  to  the 
owner."  ^^*     An  injunction  Avill  be  granted  to  protect  the  rights 

132  Consumers',  etc..  Co.  v.  Hunt-  Co..    124   Incl.    577 ;    24   N.    E.   Rep. 

singer.   14  Ind.  App.  156;   42  N.  E.  1006;    8  L.   R.   A.   602;    Bloomfield, 

Rep.    640;    Consumers',   etc..    Co.   v.  etc..   Co.   v.  Calkins,  62  N.  Y.   386; 

liuntsinger,    12    Ind.   App.   ^5 ;    40  1    T.   and   C.    ,549;    Bloomfield,   etc., 

N.    E.    Rep.    34;    Galbreath    v.    Ar-  Co.    v.    Richardson,    63    Barb.    437; 

monr,  4  Bell  App.  Cases  374.  Sterling's  Appeal.    116   Pa.   St.   35; 

i33HiiflFman     a\     State.     21     Ind.  Wel)b      v.      Ohio      Gas      Fuel      Co.. 

App.  449;    52  N.  E.  Rep.   715.  16      ^Y]dy.      Law      Bull.       121;      9 

134  Kincaid   v.    Indianapolis,    etc.,  Ohio     Dec.     Rep.     662;      Biddle     v. 


STREETS    AND    HIGHWAYS.  553 

of  au  abutting-  land  owner,  even  tliongli  the  soil  under  the  high- 
way is  of  no  actual  value  to  liim.^""' 

§506.     Consent  of  county. —  Public  highways,  crossing. 

^Vhere  the  road  is  beyond  the  limits  of  a  city  or  town,  then 
the  consent  of  the  county  authorities  must  be  obtained  before 
laying  the  gas  pipes  or  mains  therein.  As  a  rule,  the  laying 
of  gas  pipes  in  a  public  highway  without  consent  of  the  proper 
authorities  is  such  an  act  as  will  lay  the  individuals  doing  it 
liable  to  an  indictment  and  ]ninishment.  "  It  seems  to  us," 
said  one  court,  '^  that  when  the  Salemonie  Gas  Company  en- 
tered upon  the  lands  in  question  without  the  consent  of  the 
owner  of  the  fee,  and  without  permission  of  the  board  of  county 
commissioners,  it  became  a  trespasser,  and  was  upon  such  lands 
unlawfully."  '''■  Where  a  statute  gave  a  natural  gas  company 
authority  ''  To  dig  its  trenches,  to  lay  its  pipe  lines  over,  across 
or  under  any  .  .  .  road,  highway  or  railroad,  so  as  to  not 
interfere  with  the  free  use  of  the  same,  which  the  route  thereof 
shall  intersect,  in  such  manner  as  to  afford  security  for  life  or 
pro})erty ;  and  whenever  the  board  of  county  commissioners  of 
the  proper  county  shall  so  direct,  said  trenches  and  pipe  lines 
may  be  constructed  and  laid  along  the  right  of  way  of  any  road 
or  highway,  but  in  all  cases  where  said  trenches  or  pipe  lines 
shall  be  laid  across,  upui  or  along  any  general  road,  or  highway 
thus  intersected,  said  company  .  .  .  shall  immediately  re- 
store the  same  to  its  former  state,"  it  was  held  that  while  the 
natural  gas  company  could  cross  a  public  highway  without  the 
consent  of  the  board  of  county  commissioners,  it  could  not  lay 

Wayiie  \V.  W.  Co..  7  Del.  Co.  Rep.  i-5  Goodson   v.   Richardson.   L.  R. 

161;  Murray  v.  Gibson,  21  111.  App.  9   Ch.   221;    43   L.   J.   Ch.   790;    30 

488    (a  drain)  ;   Indiana,  etc..  R.  R.  L.  T.    (N.  S.)    142;   22  W.  R.  337; 

Co.     V.    Hartley.     67     111.     439     (a  Clippens  Oil  Co.  v.  Edinburgh,  etc., 

drain)  ;   Board,  etc.,  Co.  v.  Barnett,  25  Rettie  370. 

107  111.507   {a  drain)  ;  Consumers',  i^e  Huffman     v.     State,     21     Ind. 

etc.,  Co.  V.  Huntsinger.  14  Ind.  App.  App.  449;   52  X.  E.  Rep.  713;  Con- 

156;    42   N.   E.   Rep.   640.     See   Co-  sumers',  etc.,  Co.  v.  Huntsinger,   14 

lumbia    Conduit    Co.    v.    Common-  Ind.  App.   156;   42  N.  E.  Rep.  640. 
wealth,  90  Pa.  St.   307. 


554  OIL    AND    GAS, 

its  pipe  lines  along  it  witlioiit  first  obtaining  consent  from  them 
to  do  soJ^' 

§507.     Revocation  of  license  to  use  highway. 

Having  once  granted  to  a  gas  company  the  right  to  use  the 
rural  highway  of  the  county,  the  county  authorities  cannot  re- 
voke the  right  if  the  company  has  accepted  and  acted  upon 
it;  and  in  an  action  to  prevent  the  company  from  laying  its 
pipes  in  the  highway  over  which  the  right  was  granted  to  lay 
pipe  lines,  the  county  must  not  only  show  facts  entitling  it  to  a 
rescission,  that  the  company  had  not  acted  in  good  faith  upon 
the  license  granted,  and  that  it  was,  at  the  time  the  suit  Avas 
instituted,  attempting  or  threatening  the  use  of  the  highway 
for  the  purpose  given  it  in  such  license.^^^ 

§508.     Abutting  land  owner  removing  pipe  lines. 

If  pipe  lines  have  been  laid  in  a  public  highway  without  the 
consent  of  the  abutting  land  owner,  and  without  comi:iensation 
to  him  because  of  the  additional  burden  on  the  fee,  he  may  re- 
move them ;  and  neither  he  nor  those  assisting  him  will  be 
liable,  in  the  absence  or  use  of  unnecessary  force  or  violence. ^^^ 

§509.     Company  may  not  remove  pipes  unlawfully  laid  in  rural 
highway. 

If  a  gas  company  lay  pipe  lines  in  a  rural  highway  without 
the  consent  of  the  abutting  land  owner,  it  may  not  remove  them 
Avithout  his  consent.  As  soon  as  they  are  placed  in  the  soil  they 
become  a  part  of  the  freehold ;  and  their  removal  by  the  com- 
pany lays  it  liable  to  an  indictment  for  trespass  upon  the  land 
in  which  they  are  embedded.  "  It  seems  to  us,"  said  the  Ap- 
pellate Court  of  Indiana,  "  that  when  the  Salemonie  Gas  Com- 

137  Consumers'   Gas   Trust   Co.   v.  i38  Board     v.     Indianapolis,     etc., 

Huntsinger,    14   Ind.   App.    1^6;    42  Co.,    134   Ind.   209;    3.3    N.   E.   Rep. 

]SJ.  E.  Rep.  640;  Board  v.  Indianap-  972. 

olis,  etc.,  Co.,   134  Ind.   209;   33  N.  "o  Consumers',  etc..  Co.  v.  Hunt- 

E.   Rep.   972;   Consumers',   etc.,   Co.  singer,  14  Ind.  App.   156;  42  N.  E. 

V.  Huntsinger,  12  Ind.  App.  285;  40  Rep.  640. 
N.   E.    Rep.    34. 


STREETS    AXD    HIGHWAYS.  555 

pany  entered  upon  the  lands  in  question  without  the  consent  of 
the  owner  of  the  fee,  and  without  permission  of  the  board  of 
county  commissioners,  it  became  a  trespasser,  and  was  upon 
such  hinds  unlawfully.  If  it  was  unlawful  in  the  first  place 
to  go  upon  the  lands  to  construct  the  pij^e  line,  without  the 
consent  of  the  owner,  it  was  likewise  unlawful  to  go  upon  them 
to  remove  the  same,  and  hence  when  appellant  was  upon  the 
lands  of  the  prosecuting  witness,  in  charge  of  a  force  of  men 
engaged  in  removing  such  pipe  line,  he  was  unlawfully  there. 
While  appellant  was  not  himself  engaged  in  the  manual  re- 
moving of  the  pipe,  he  was  directing  and  overseeing  the  work 
of  removal."  "  Xeither  a  private  person  nor  a  corporation  has 
any  inherent  right  so  to  use  a  public  thoroughfare,  and  where 
the  proper  steps  have  not  been  taken  to  acquire  such  right,  it 
is  a  trespass,  within  the  meaning  of  the  statute,  so  to  do.  So, 
when  the  appellant  went  upon  the  land  of  the  prosecuting  wit- 
ness to  take  up  the  pipe  line,  he  was  there  unlawfully;  and 
when  he  refused  to  depart,  upon  being  notified  to  do  so,  it  was 
a  violation  of  the  statute,  for  which  he  must  answer."  ^*^ 

§510.     Pipes  on  surface  of  highway  or  street. 

Whatever  may  be  the  right  to  lay  gas  pipes  in  a  highway  or 
street,  it  is  clear  that  none  can  be  acquired  to  lay  the  pipes  on 
its  surface.  A  street  or  highway  is  for  public  travel,  and  not 
for  private  purposes.  It  must  l>e  free  from  obstructions  to 
travel  from  side  to  side,  from  end  to  end.  If  pipes  are  laid 
on  the  surface  of  a  street  or  highway,  the  company  will  be  liable 
for  all  damages  occasioned  thereby,  even  though  such  damages 
would  iiot  have  been  occasioned  by  the  pipes  if  they  had  l3een 
buried  in  trenches."^  "  It  is  a  nuisance  and  unlawful  to  place 
and  keep  or  leave  continuously  in  a  public  highway  anything 
which  either  impedes  or  endangers  public  travel.  This  rule 
applies  to  the  whole  width  of  the  highway,  and  not  merely  to 
a  worn  portion  of  it  commonly  used  for  passage.     Privileges 

140  Huffman     v.     State.     21     Ind.       Ind.  443;   39  N.  E.  Rep.  57;   29  L. 
App.  449;   52  X.  E.  Rep.  713.  R.   A.   342. 

141  Lebanon,  etc.,  Co.  v.  Leap,  139 


556  OIL    AXD    GAS. 

which,  if  usurped  by  a  greater  iniuiLer  of  persons  or  corpora- 
tions would  change  the  road  from  a  public  easement  to  a  mere 
special  benefit  or  convenience  to  such  usurpers,  are  not  lawful 
for  any  of  them.  The  user  must  be  consistent  with  the  con- 
tinued use  of  the  road  every  part  thereof  as  a  passageway  by 
all  persons  exercising  ordinary  care."  "'  In  the  case  from 
which  this  quotation  is  made,  a  half-inch  gas  pipe,  the  thickness 
of  the  iron  being  one-eighth  of  an  inch,  was  laid  in  the  highway 
four  feet  from  the  fence ;  and  it  was  hid  by  weeds,  and  grass 
that  covered  it,  having  laid  there  several  years.  A  stranger 
to  that  neighborhood  was  taking  a  traction  engine  into  a  field 
bordering  on  the  highway,  and  not  knowing  of  the  existence  of 
the  pipe,  ran  over  it,  broke  it,  and  an  explosion  followed,  to 
his  injury.  It  was  held  that  the  company  laying  the  pipe  in 
the  highway  were  liable  to  recompense  him  for  his  injuries. 
So  where  a  boy  eighteen  years  of  age,  passing  along  a  highway, 
stopped  to  look  at  burnipg  gas  escaping  from  a  pipe  laid  in  such 
highway,  and  he  was  told  by  another  boy  with  him,  that  if  he 
would  raise  up  the  pipe  it  would  make  a  nice  fire,  which  he 
did,  and  an  explosion  followed,  to  his  injury,  it  was  held  that 
he  could  recover,  and  that  he  did  not  so  contribute  to  the  ex- 
plosion so  as  to  bar  his  right  to  recover  damages. ^*^ 

1*2  Indiana,  etc.,   Co.  v.  McMath,  pra.     See  Ohio  Gas  Fuel  Co.  v.  An- 

26   Ind.   App.    154;    57    N.   E.   Eep.  drews,   50   Ohio   St.   695;    35   N.   E. 

593;   59  N.  E.  Rep.  287.  Rep.  1059;  29  L.  R.  A.  337. 

143  Lebanon,  etc.,  Co.  v.  Leap,  su- 


CHAPTER  XXIV. 

MUNICIPALITY  SUPPLYING  GAS. 

§511.  Municipality  may  be  authorized  to  own  gas  plant. 

§512.  Sufficiency  of  statute  to  authorize  municipality  to  furnish  gas  for 
commercial  purposes. 

§513.  Insufficiency  of  statute  to  authorize  a  municipality  to  furnish  com- 
mercial  gas. 

§514.  Construction  of  municipal  charters. 

§515.  Municipality's  profit. 

§516.  Competition  with  private  plant. 

§517.  Election  to  authorize  purchase  or  erection  of  plant. 

§518.  Municipality  must  be  sole  proprietor  of  plant. —  Taking  stock. 

§519.  Right  to  purchase  plant  of  gas  company. 

§520.  Trustees  for  gas  works. 

§521.  Sale  of  municipal  plant. 

§522.  Municipality  may  lease  its  own  gas  works. 

§523.  Rules  and  regulations. 

§511.     Municipality  may  be  authorized  to  own  gas  plant. 

It  is  clear  that  a  municipality  cannot  own  a  gas  plant  and 
supply  its  inhabitants  with  gas  for  lighting,  heating  or  power 
purposes  unless  some  statute  in  direct  terms,  or  by  very  strong 
implication,  authorizes  it.^  It  is  universally  the  case  that  such 
institutions  of  government  are  authorized  to  supply  their  in- 
habitants with  water ;  but  the  practice  has  not  been  so  universal 
with  reference  to  light ;  although  the  practice  is  almost  daily 
growing,  to  extend  such  jiower  to  them.  The  ])0wer  of  the 
legislature  to  authorize  a  municipality  to  furnish  light  for  com- 
mercial purposes  to  its  inhabitants  received  a  very  careful  ex- 
amination by  the  justices  of  the  Supreme  Court  of  Massachu- 
setts as  late  as  1890.  The  constitution  of  that  State  authorizes 
the  general  court  to  make  "  all  manner  of  wholesome  and  rea- 
sonable  orders,   laws,    statutes,   and  ordinances,"   and  to  levy 

1  Ladd  V.  Jones,  61  111.  App.  584. 

557 


558  OIL    AND    GAS. 

"  proportional  and  reasonable  assessments,  rates,  and  taxes, 
.  for  the  public  service,  in  the  necegsary  defense  and 
support  of  the  government  of  said  commonwealth,  and  the  pro- 
tection and  preservation  of  the  subject  thereof."  Under  this 
power  tfie  court  was  of  the  opinion,  when  an  opinion  was  re- 
quested of  it  by  the  legislature,  that  it  could  authorize  a  mu- 
nicipality to  not  only  buy  or  purchase  a  gas  or  electric  lighting 
jilant  to  light  its  streets  and  public  buildings ;  but  it  could  also 
supply  its  inhabitants  with  gas  and  electricity  for  private  pur- 
poses. The  opinion,  however,  is  confined  to  the  power  to  fur- 
nish gas  or  electricity  for  lighting  purposes,  and  nothing  is  said 
concerning  the  furnishing  of  these  commodities  for  heating  or 
power.^  In  other  States  similar  opinions  have  been  given.'' 
To  levy  a  tax  to  build  a  plant  and  supply  gas  for  lighting  the 
streets,  and  also  for  domestic  purposes,  is  to  levy  one  for  public 
purposes ;  and  it  cannot  be  defeated  on  the  ground  that  it  is  for 
a  private  purpose,  or  a  business  in  which  only  a  private  corpora- 
tion is  authorized  to  eiiter  upon.  It  is  the  duty  of  a  munici- 
pality to  light  its  streets  and  public  places  in  order  to  protect 
the  lives  and  property  of  its  citizens  from  thieves,  robbers  and 
murderers ;  *  and  it  is  a  necessity  that  its  public  buiklings 
should  be  lighted  in  order  that  its  business  may  be  properly 
transacted.  But  to  erect  a  plant  for  these  purposes  would 
necessarily  result  in  a  loss  to  the  municipality  unless  there  is 
connected  with  it  the  power  to  furnish  gas  to  the  private  con- 
sumer. The  business  of  furnishing  gas  to  a  municipality  is 
of  such  a  monopolistic  character  that  if  it  should  undertake  to 
furnish  it  for  municipal  purposes  alone  it  would  be  very  often 
impossible  for  its  inhabitants  to  secure  gas  from  a  private 
source;  for   in  the  average  municipality  one  gas  company  is 

2  Opinion  of  the  Justices,  150  v.  Chambersburg,  160  Pa.  St.  511; 
Mass.  592;  24  N.  E.  Rep.  1084;  8  28  Atl.  Rep.  842;  Hamilton  Gas- 
Ij.  R.  a.  487;  Citizens'  Gaslight  Co.  light  and  Coke  Co.  v.  Hamilton. 
V.  Wakefield,  161  Mass.  432;  37  N.  146  U.  S.  258;  13  Sup.  Ct.  Rep. 
E.  Rep.  444;  GraeflF  v.  Feli*,  24  90;  affirming  37  Fed.  Rep.  832. 
Pa.   Co.  Ct.  Rep.   657.  4  Crawfordsville    v.    Braden,    loO 

3  State  V.  Hamilton,   47   Ohio   St.  Ind.  149;  28  N.  E.  Rep.  849;   14  L. 
52;   23  N.  E.  Rep.  935;   Wheeler  v.  R.  A.  268;  30  Am.  St.  Rep.  214. 
Philadelphia,  77  Pa.  St.  338;   Linn 


MUNICIPALITY    SUPPLYIXG    GAS.  559 

sufficient  to  supply  all  the  gas  needed  within  its  boundaries, 
and  two  companies  cannot  operate  with  a  sufficient  profit  to 
maintain  their  plants.  If,  therefore,  a  municipality  could  not 
supply  its  inhabitants  with  gas  for  domestic  purposes  they 
would  often,  indeed  in  a  very  large  majority  gf  cases,  be  en- 
tirely deprived  of  its  use.  The  rule  is  universal  that  taxation 
for  the  purjwse  of  building  gas  and  electric  plants  for  lighting 
purposes  by  municipalities  is  sucli  a  public  subject  as  author- 
izes taxation  for  that  purpose.^  In  furnishing  gas  to  private 
consumers  a  city  acts  in  its  capacity  as  a  private  corporation 
and  not  by  virtue  of  its  powers  of  local  sovereignty.  In  such 
a  case  the  municipality  is  bound  by  its  contracts  with  its  in- 
habitants, and  the  legislature  cannot  authorize  it  to  violate 
them.*' 

§512.     Sufficiency  of  statute  to  authorize  municipality  to  furnish 
gas  for  commercial  purposes. 

Where  a  statute  in  direct  terms  authorizes  a  municipality  to 
furnish  gas  for  commercial  purposes,  there  is  no  room  for  con- 
struction ;  but  where  the  power  is  an  implied  one  difficulties 
arise.  This  difficulty  is  very  well  illustrated  by  an  Indiana 
case.  In  that  State  a  statute  gave  a  city  or  town  "  power  to 
light  the  streets,  alleys  and  other  public  places  of  such  city  or 
town  with  the  electric  light,  or  other  form  of  light,  and  to 
contract  with  any  individual  or  corporation  for  lighting  such 
streets,  alleys  and  other  public  places  with  the  electric  light, 
or  other  form  of  light,  on  such  terms,  and  for  such  times,  not 
exceeding  ten  years,  as  may  be  agreed  upon."  Under  this 
statute  it  w^as  held  that  a  municipality  had  the  power  to  buy  an 
electric  lighting  plant,   and  as  an  incident  to  its  purchase  to 

5  Fellows  V.  Walker,  39  Fed.  Rep.  Fla.  220;  18  So.  Eep.  067;  30  L.  R. 

651;    State   v.   Toledo,   48   Ohio   St.  A.    540;    Sclienck   v.   Olyphant,    181 

112;   26  N.  E.  Rep.  1061;    11  L.  R.  Pa.  St.  191;   37  Atl.  Rep.  258. 

A.   729;    Mitchell  v.   Negaunee,    113  c  Western  Saving  Fund  Society  v. 

Mich.  359;   71   X.  W.  Rep.  646;   38  Philadelphia.    31    Pa.    St.    175;    72 

L.   R.   A.    157;    Townsend  Gas,   etc..  Am.    Dec.    730;    Bailey   v.    Philadel- 

Co.    V.    Port    Townsend,    19    Wash.  phia,  184  Pa.  St.  594;  41  W.  N.  C. 

407;    53    Pac.    Rep.    551;    Jackson-  529;  39  Atl.  Rep.  494;   39  L.  R.  A, 

ville.    etc.,    Co.    v.    Jacksonville,    36  837. 


560  OIL    AND    GAS. 

issue  bonds  in  order  to  secure  money  to  pay  for  it.  Nothing 
is  said  in  the  opinion  concerning  tlie  furnishing  of  commercial 
light,  hut  it  is  apparent  throughout  that  the  municipality  was 
about  to  engage  upon  that  enterprise.'  In  a  subsequent  case 
the  power  of  a  municipality  to  furnish  light  to  a  private  con- 
sumer for  remuneration  was  directly  presented ;  and  its  power 
upheld  under  the  statute  quoted.  The  court  c'onsidered  that 
"  the  power  to  light  the  streets  and  public  places  of  a  city  is  one 
of  its  implied  and  inherent  powers,  as  being  necessary  to  prop'- 
erly  protect  the  lives  and  properties  of  its  inhabitants,  and  as 
a  check  on  immorality."  "  So  far  as  lighting  the  streets,  al- 
leys, and  public  places,  of  a  municipal  corporation  is  con- 
cerned," said  the  court,  ''  we  think  that,  independently  of  any 
statutory  power,  the  municipal  authorities  have  inherent  power 
to  provide  for  lighting  them.  If  so,  unless  this  discretion  is 
controlled  by  some  express  statutory  restriction,  they  may,  in 
their  discretion,  provide  that  form  of  light  which  is  best  suited 
to  the  wants  and  financial  condition  of  the  corporation."  In 
discussing  the  power  to  furnish  light  for  commercial  purposes, 
the  court  added :  "  The  corporation  possessing,  as  it  does, 
the  power  to  generate  and  distribute  throughout  its  limits, 
electricity  for  the  lighting  of  the  streets  and  other  public  places, 
we  can  see  no  good  reason  why  it  may  not  also,  at  the  same 
time,  furnish  it  to  its  inhabitants  to  light  their  residences  and 
jDlaces  of  business.  To  do  so  is,  in  our  opinion,  a  legitimate 
exercise  of  the  police  power  for  the  preservation  of  property  and 
health."  **  A  statute  of  Iowa  gave  a  municipality  power  "  to 
establish  and  maintain  gas  works  or  electric  light  plants,  with 
all  the  necessary  poles,  wires,  burners,  and  other  requisites  of 
said  gas  works  or  electric  light  plant."  Under  this  statute  it 
was  held  that  it  had  the  power  to  furnish  commercial  light. 
"  It  has  been  the  uniform  rule,"  said  the  court,  "  that  a  city, 
in  erecting  gas  works  or  water  works,  is  not  limited  to  furnish- 
ing gas  or  water  for  use  only  upon  the  streets  and  other  public 

TRushville   Gas   Co.   v.   Rushville,  L.  R.  A.  268;  30  Am.  St.  Rep.  214; 

121  Ind.  200;  23  N.  E.  Rep.  72.  Rockebrandt    v.     Madison,     9     Ind. 

8  Crawfordsville    v.    Braden.     130  App.  227;   36  N.  E.  Rep.  444. 
Ind.    149;    28    N.    E.    Rep.    849;    14 


MUNICIPALITY    SUPPLYING    GAS.  561 

places  of  the  city,  but  may  furnish  the  same  for  private  use ; 
and  the  statutes  of  Iowa  now  place  electric  light  plants  in  the 
same  category."  ®  In  Tennessee  a  statute  authorized  a  munici- 
pality to  provide  itself  ''  with  water  by  water  works,  within 
or  beyond  its  boundaries,  and  to  provide  for  the  prevention  and 
extinguishment  of  fires,  and  organize  and  establish  fire  com- 
panies." Acting  under  the  authority  thus  conferred,  a  city 
established  water  works,  and  in  addition  to  making  provision 
for  the  extinguishment  of  fires,  it  furnished  water  to  the  citi- 
zens. The  action  of  the  city  was  upheld  by  the  Supreme  Court 
of  that  State.  "  Nothing,"  said  the  court,  "  should  be  of 
greater  concern  to  a  municipal  corporation  than  tlie  preserva- 
tion of  the  good  health  of  the  inhabitants ;  nothing  can  be  more 
conducive  to  that  end  than  a  regular  and  sufficient  supply  of 
wholesome  water,  which  common  observation  teaches  all  men 
can  be  furnished,  in  a  po]mlous  city,  only  through  the  instru- 
mentalitv  of  a  well  equipped  water  works.  Hence,  for  a  city 
to  meet  such  a  demand  is  to  perform  a  public  act  and  confer  a 
public  blessing.  It  is  not  a  strictly  governmental  or  municipal 
function,  which  every  municipality  is  under  legal  obligation 
to  assume  and  perform,  but  it  is  very  close  akin  to  it,  and  should 
always  be  recognized  as  within  the  scope  of  its  authority,  un- 
less excluded  by  some  positive  law.  .  .  .  It  is  the  doing  of 
an  act  for  the  public  weal  —  a  lending  of  corporate  property 
to  a  public  use.  ...  It  cannot  be  held  that  the  city,  in 
doing  so,  is  engaged  in  a  private  enterprise,  or  performing  a 
municipal  function  for  a  private  end."  "  Under  an  authority 
to  contract  and  be  contracted  with,  sue  and  be  sued,  and  do  all 
things  for  the  benefit  of  the  city,"  a  city  may  construct  and 
maintain  a  water  and  light  plant  or  either  one.^^  So  under  a 
statute   authorizing  a   city  to   issue  bonds  for  municipal  pur- 

9  Thomson-Houston  Electric  Co.  464;  12  S.  W.  Rep.  924;  Ellimvood 
V.  Newton,  42  Fed.  Rep.  723.  The  v.  Reedsburg.  91  Wis.  131;  64  N. 
Indiana  Supreme  Court  in  the  ease  W.  Rep.  885 ;  Hummelstown  v. 
just  cited  considered  that  this  stat-  Brunner,  17  Pa.  Co.  Ct.  Rep.  140;  5 
ute   did  not  confer   any  power   not  Pa.  Dist.  Rep.  8. 

included  among  the  implied  powers  nHeilbron    v.    Cuthbert,    96    Ga. 

of  a  municipal  corporation.  312;   23  S.  E.  206. 

10  Smith    V.    Nashville,    88    Tenn. 


562  OIL    AND    GAS. 

poses  a  city  may  issue  them  to  build  a  plant  to  light  its  streets 
and  supply  commercial  light. ^^ 

f^513.     Insufficiency   of   statute   to   authorize   a  municipality   to 
furnish  commercial  gas. 

Courts  have  not  always  indulged  in  the  liberal  interpreta- 
tion of  statutes  that  has  been  exhibited  in  the  previous  section. 
In  South  Carolina  the  Supreme  Court  said  on  a  question  of 
this  kind :  "  The  city  has  the  express  power  to  own  property, 
and  it  also  has  the  implied  right  to  light  the  city. 
Considering  that  some  discretion  as  to  the  mode  and  manner 
should  be  allowed  the  municipality,  in  carrying  out  the  con- 
ceded power  to  light  the  streets  of  the  city,  we  hold  that  the 
purchase  of  the  plant  was  not  ultra  vires  and  void,  so  far  as  it 
was  designed  to  produce  electricity  suitable  for  and  used  in 
lighting  the  streets  and  public  buildings  of  the  city."  The 
court,  however,  denied  the  power  of  the  city  to  furnish  light  to 
private  citizens,  on  the  ground  that  to  do  so  would  be  entering 
into  private  business  outside  of  the  scope  of  the  city  govern- 
ment.^^ The  same  conclusion  was  reached  in  Massachusetts. 
The  statutes  of  the  State  —  many  in  number  —  are  reviewed 
at  length ;  but  it  is  held  that  none  authorize  a  municipality 
to  embark  in  the  enterprise  of  furnishing  private  citizens  light 
in  connection  with  the  light  it  furnishes  for  lighting  its  streets ; 
indeed,  it  is  said  that  a  municipality  is  under  no  obligation 
to  light  its  streets.^*  So  in  ISTew  Jersey  a  municipality  is  not 
authorized  to  erect  and  maintain  an  electric  plant  by  a  power  to 
pass  ordinances  for  "  lighting  the  streets  " ;  for  another  pro- 
vision requires  the  council  to  establish  lamp,  police  and  water 
districts  in  the  city,  and  directs  that  the  taxes  for  lighting 
streets  shall  be  assessed  wholly  on  the  property  within  these 
.districts.     This  statute  also  authorizes  the  city  to  enter  into  a 

i2..Tack8oiiville  Electric  LigTit  Co.        1;    11    S.   E.   Rep.   434;    8   L.  R.  A. 
V.  .Licksonville.  36  Fla.  229;    18  So.        291. 
Rep.  677 ;   30  L.  R.  A.   .540.  i*  Spaulding      v.      Peabody.      153 

i^Mauldin  v.  Grenville,  33   S.   C.       Mass.   129;   26  N.  E.  Rep.  421;    10 

L.  R.  A.  397. 


MUNICIPALITY    SUPPLYIXG    GAS.  563 

contract  for  street  lights  with  any  party,  for  a  term  not  ex- 
ceeding five  years,  and  to  annually  levy  and  collect  a  tax  to 
pay  the  expense  thereof.^' 

§514.     Construction  of  municipal  charters. 

In  determining  whether  or  not  a  municipality  may  own  a 
gas  plant  and  supply  its  inhabitants  wdth  gas  for  lighting,  heat- 
ing or  power  purposes,  it  must  he  borne  in  mind  that  a  munici- 
pality has  only  such  powers  as  the  Stala  through  its  constitution 
or  legislative  body  has  conferred  upon  it.  '"  They  [municipali- 
ties] have  no  inherent  jurisdiction  to  make  laws  or  adopt  regu- 
lations of  government ;  they  are  governments  of  enumerated 
powers,  acting  by  a  delegated  authority ;  so  that  while  the 
State  legislature  may  exercise  such  powers  of  government  com- 
ing within  a  proper  designation  of  legislative  power  as  are  not 
expressly  or  impliedly  prohibited,  the  local  authorities  can  ex- 
ercise those  only  which  are  expressly  or  impliedly  conferred, 
and  subject  to  such  regulations  or  restrictions  as  are  annexed 
to  the  grant."  ^°  It  is,  therefore,  a  rule  of  interpretation  of 
the  charters  of  a  municipality,  or  of  the  laws  under  which  it  is 

15  Howell  V.  Millville,  60  N.  J.  L.  City   Gas   Co.   v.   Dwight,   29   N.   J. 

95;   .36  Atl.  Rep.  691.  Eq.  242. 

The  objection  that  a  city  has  no  le  Cooley  Const.  Lim.  (6th  ed.) 
power  to  purchase  water  works  can-  227 ;  citing  Stetson  v.  Kempton,  13 
not  be  made  by  the  owner  of  the  Mass.  272;  Willard  v.  Killingworth, 
works  in  order  to  defeat  his  con-  8  Conn.  247 ;  Abendroth  v.  Green- 
tract  with  the  city  for  the  sale  wich,  29  Conn.  356 ;  Baldwin  v. 
thereof.  Bristol  v.  Bristol,  etc..  W.  ISorth  Branford.  32  Conn.  47;  Web- 
\V.,  19  R.  I.  413;  34  Atl.  Rep.  359;  ster  v.  Harwinton.  32  Conn.  131; 
32  L.   R.  A.  740.  Douglass  v.  Placerville,  18  Cal.  644; 

In    Xorth    Carolina    it    was   held  Lackland  v.  Xorth.  Mo.  R.  R.  Co., 

that    furnishing    water    to    the    in-  31  Mo.   180;   Mays  v.  Cincinnati,   1 

habitants  of  a  city  was  not  in  itself  Ohio  St.   268;    Frost  v.   Belmont,  6 

a  necessary  city  expense  in  the  sense  Allen  152;  Hess  v.  Pegg,  7  Nev.  23; 

that  a   city   must  own  and  operate  Ould   v.   Richmond,   23   Gratt.   464 : 

a    system    of   water   works.      Char-  14    Am.    Rep.    139;    Youngblood    v. 

lotte  V.  Shepard.  120  N.  C.  411;  27  Sexton.  32  Mich.  406;  20  Am.  Rep. 

S.   E.   Rep.    109.  654;    Detroit    Citizens'    St.    Ry.    v. 

In    New    .Jersey    it    is    said    that  Detroit  Ry..   171  U.  S.  48;   18  Sup. 

making    and    selling    gas    is    not    a  Ct.   Rep.    732;    affirming    110   Mich, 

prerogative   of   government.     Jersey  384;  68  N.  W.  Rep.  304. 


564  OIL    AND    GAS. 

incorporated,  that  power  not  expressly  given  will  not  be  pre- 
sumed, unless  necessarily  or  fairly  implied  in  or  incident  to 
other  powers  expressly  given  —  not  simply  convenient,  but  in- 
dispensable to  them." 

§515.     Municipality's  profit. 

If  the  avowed  purpose  of  the  object  of  a  municipality  in  fur- 
nishing gas  is  merely  a  business  venture,  with  a  view  to  make 
a  profit  by  the  undertaking,  and  not  to  furnish  gas  to  its  inhab- 
itants as  cheaply  as  it  can  reasonably  be  done  without  loss  and 
to  obtain  lights  for  its  streets,  then  it  may  Avell  be  doubted  if 
it  can  engage  in  such  business ;  for  to  do  so  would  be  to  author- 
ize a  municipality  to  engage  in  purely  a  commercial  adventure. 
But  just  where  the  line  shall  be  drawn  in  fixing  the  rates  it  may 
charge  is  difficult  to  determine.  Such  a  question  is  an  illus- 
tration of  a  theoretical  rather  than  a  practical  problem.  Pn;- 
dence  should  dictate  t<?'a  municipality  to  fix  the  rate  not  only 
sufficiently  high  to  pay  all  running  expenses,  but  high  enough 
to  furnish  a  fund  for  repairing  the  machinery  and  other  parts 
of  the  plant,  and,  indeed,  to  create  a  fund  to  replace  them 
when  they  are  ultimately  worn  out,  without  resorting  to  the 
power  of  taxation  to  obtain  new  machinery.  To  permit  the 
municipality  to  fix  the  rate  so  high  that  it  will  not  only  fur- 
nish these  several  sums,  but  also  make  at  least  a  return  of  a 
sum  sufficient  to  pay  the  usual  rate  of  interest  on  the  invest- 
ment, would  be  to  allow  it  to  engage  in  a  commercial  adventure, 
as  clearly  so  as  to  allow  it  to  make  a  greater  amount  tenned 
"  profit."  "  Of  course,  if  a  plant  is  self-sustaining,  and  the 
municipality  thereby  gets  its  street  and  own  light  free  of  charge 
(as  is  usually  the  case),  then  an  inequality  necessarily  arises 
among  its  inhabitants ;  for  those  who  use  the  gas  necessarily 
pay  a  rate  so  high  that  it  enables  the  mimicipality  to  supply 

1"  Los  Angeles  V.  Los  Angeles  City       Rep.  304;  Park  Com'rs.  v.  Common 
Wcater  Co..   177  U.   S.   558;   ?>etroit       Council,   28  Mich.   228,  239. 
Citizens'  St.  Ry.  v.  Detroit  Ry.,  171  is  See  Hamilton  v.  Hamilton,  etc., 

U.  S.  48;  18  Sup.  Ct.  Rep.  732;  af-  Gaslight  Co.,  11  Ohio  Dec.  513; 
firming   110  Mich.    384;    68   N.    W.       Dixon  v.  Entriken.  6  Pa.  Dist.  Rep. 

447;    19  Pa.  Co.  Ct.  Rep.  414. 


MUNICIPALITY    SUPPLYING    GAS.  565 

its  streets  and  its  public  buildings  with  light  free  of  cost  to 
itself,  while  those  of  its  inhabitants  who  do  not  use  the  gas  con- 
tribute nothing  towards  the  lighting  of  such  streets  and  public 
buildings.  The  inequality  may  not  be  very  great,  and  yet  it 
will  exist.  The  author  does  not  recall  any  instance  where  this 
fact  of  inequality  has  been  urged  as  a  reason  why  statutes 
authorizing  a  municipality  to  furnish  gas,  light  or  water  to 
private  consumers  are  unconstitutional,  or  such  an  enterprise 
unauthorized.^^ 

§516.     Competition  with,  private  plant. 

As  a  general  rule,  a  municipality  cannot  deprive  itself,  in 
making  a  gTant  to  a  private  company,  of  the  right  to  furnish 
light  or  water,  nor  bind  itself  not  to  erect  a  plant  of  its  own 
and  not.  to  compete  wdth  such  company  in  the  furnishing  of 
light  and  water,  where  its  charter  authorizes  it  to  put  in  a  light 
or  water  plant. -°  The  city  may  occupy  with  its  mains  the  same 
streets  the  private  company  is  occupying."^  If  a  municipality 
has  the  authority  to  take  water  works  under  the  power  of  emi- 
nent domain,  such  power  is  not  taken  away  by  a  contract  with 
a  private  company  for  the  supply  of  water  during  a  term  of 
years  having  in  it  a  provision  re([uiriiig  the  payment  of  hydrant 
rentals  by  such  municipality. -- 

§517.     Election  to  authorize  purchase  or  erection  of  plant. 

Recent  statutes  frequently  limit  the  power  of  a  municipality 
to  purchase  or  erect  a  lighting  plant,  by  first  requiring  the 
question  to  be  submitted  to  a  vote  of  the  inhabitants  of  the 

19  Water    or    gas    rates    are    not  Co..   172  U.  S.   1 ;    19  Sup.  Ct.  Hep. 
taxes  which  may  be  collected  by  the  77  ;  affirming  60  Fed.  Rep.  957. 
tax    collector.     Dixon    v.    Entriken.           21  Hughes    v.    Momence,  103    111. 
6   Pa.   Dist.   Rep.   447;    19   Pa.   Co.  535;  45  N.  E.  Rep.  300. 

Ct.   Rep.   414.  --  Long  Island  Water  Supply  Co. 

20  North  Springs  Water  Co.  v.  v.  Brooklyn.  IGO  V.  S.  G85;  affirm- 
Tacoma,  21  Wash.  517;  58  Pac.  ing  143  N.  Y.  596;  38  N.  E.  Rep. 
Rep.  773;  47  L.  R.  A.  214.  See  983;  17  Sup.  Ct.  Rep.  718;  29  Cai- 
Walla  Walla  v.  Walla  Walla  Water  cago  L.  N.  313.     See  North  Springs 

Water  Co.  v.  Tacoma,  supra. 


566  OIL    AND    GAS. 

municipality.  Notice  of  the  proposition  is  required  to  be  given. 
Sometimes  these  propositions  are  voted  upon  at  a  general  elec- 
tion, in  connection  with  the  election  of  officers,  and  at  other 
times  a  special  election  is  held  for  the  sole  purpose  of  taking 
the  sense  of  the  electors  upon  the  propositions  submitted  to 
them.  Thus  a  statute  of  Massachusetts  required  two  affirma- 
tive votes,  taken  at  a  meeting  that  is  j^culiar  to  the  town  or- 
ganizations of  that  State,  before  the  town  could  erect  a  phuit ; 
and  if  the  vote  should  at  both  meetings  be  in  the  affirmative, 
the  town  could  then  erect  a  plant.  It  also  provided  that  the 
town  might  purchase  any  existing  plant  in  the  town,  after  such 
votes  had  been  taken,  if  the  owner  of  it  consented  to  sell  it  and 
they  could  agTee  on  terms ;  but  if  the  city  declined  to  purchase, 
then  the  owner  could  apply  to  the  court  for  the  appointment  of 
commissioners  to  fix  the  value  of  his  plant,  and  the  town  was 
then  compelled  to  take  it  at  the  figures  thus  fixed.  Under  this 
statute  it  was  decided  thut  a  third  vote  to  buy  an  existing  plant 
was  not  necessary ;  that  the  fact  of  the  poles  of  the  plant  not 
being  legally  in  the  streets  would  not  defeat  the  petition  of  the 
owner,  that  fact  going  only  to  reduce  the  value  of  the  plant ; 
and  that  that  portion  of  the  statute  requiring  the  town  to  pur- 
chase the  plant  was  constitutional,  it  being  optional  with  the 
owner  to  sell.'^  Slight  variations  among  the  separate  instru- 
ments calling  for  an  election,  the  notice  of  election  and  the  like 
do  not  invalidate  the  proceedings.  But  a  proceeding  for  the 
building  of  a  plant  is  invalidated  by  the  fact  that  the  resolution 
adopted  stated  that  bonds  would  be  issued  ''  for  the  erection 
and  purchase,"  the  mayor's  proclamation  that  it  was  "  for  the 
erection,"  and  the  ordinance  that  it  was  ''  for  the  erection  or 
construction  "  of  a  plant.  Such  a  double  purpose  is  stated  as  to 
invalidate  the  proceedings."^  A  city  may  issue  bonds  for  a 
water  plant  alone  under  a  charter  provision  by  separate  pro- 
visions to  be  voted  on,  for  the  issuing  of  bonds  for  building  one 

23  Citizens'  Gaslight  Co.  v.  Wake-  57  Ohio  St.  374;  49  N.  E.  Rep.  335, 
field,  161  Mass.  432;  37  N.  E.  Rep.  reversing  14  Ohio  C.  C.  219;  7  Ohio 
444.  See  Baltimore,  etc.,  Co.  v.  Dec.  527;  38  Wkly.  L.  Bull.  200;  39 
People   (111.),  66  N.  E.  Rep.  246.  Wkly.  L.  Bull.  139. 

24  Elyria  Gas,  etc.,  Co.  v.  Elyria, 


MUNICIPALITY    SUPPLYING    GAS.  56"7 

kind  of  a  plant  without  building  the  other  also,  although  they 
are  called  "  water  and  light  bonds  "  in  the  charter.-^'  Of  course 
the  power  to  issue  bonds  or  borrow  money  to  build  or  purchase 
a  plant  is  subject  to  constitutional  limitations  concerning  in- 
debtedness."*' Where  a  statute  requires  a  vote  to  be  first  taken 
to  determine  whether  a  lighting  system  shall  be  acciuircd  by  the 
municipality,  the  municipal  authorities  cannot  waive  a  com- 
pliance with  the  provisions  of  the  statute ;  for  the  sanction  of 
the  vote  is  a  condition  precedent  to  the  right  of  the  municipality 
to  institute  condemnatory  proceedings,  when  necessary,  to  ac- 
quire property  for  the  plant. "^  So  power  whereby  a  lighting- 
undertaking  may  be  authorized  by  a  provisional  order  of  a  mu- 
nicipality to  purchase  such  undertaking  compulsorily  on  issu- 
ing corporation  stock  to  a  certain  amount  is  in  abeyance  so  long 
as  the  municipality  has  no  power  to  issue  irredeemable  stock 
because  of  a  subsequent  provisional  order  taking  away  the 
power  previously  held,  but  not  exercised  by  the  municipality, 
although  the  statutes  confirming  the  two  orders  were  approved 
on  the  same  day.^^ 

§518.     Municipality  must  be  sole  proprietor  of  plant. —  Taking 
stock. 

Whether  or  not  a  municipality  must  be  the  sole  owner  of  a 
gas  plant,  or  wdiether  it  may  embark  in  the  enterprise  in  con- 
nection with  private  funds,  depends  upon  the  State  constitu- 
tion and  statutes  of  the  State.  In  some  States  their  consti- 
tutions forbid  a  municipality  to  become  a  stockholder  in  any 
stock  company,  corporation,  or  association,  or  even  to  raise 
money  for  or  loan  its  credit  to  or  in  aid  of  any  such  company, 
corporation,  or  association.  Such  a  provision  is  sufficient  to 
prohibit  it  from  becoming  a  part  owner  of  a  gas  plant,  the  re- 
maining portion  being  held  by  private  individuals.  Such  a 
provision  is  broad  enough  to  forbid  additions  to  the  works  of 

25  Janeway  v.  Duhith.  65  Minn.  -'In  re  LeRoy,  2.3  N.  Y.  ]Misc. 
292;    68   N.   W.  Eep.  24.  53;    50    X.    Y.    Supp.    611. 

26  Spilman  v.  Parkersburg,  35  W.  28  Sheffield  v.  Sheffield,  etc..  Co. 
Va.  605;  14  S.  E.  Rep.  279.  [1898].   1   Ch.  203;   77  Law  T.  Rep 

616;  67  L.  J.  Ch.   (N.  S.)    113. 


568 


OIL    AND    GAS. 


the  municipality  made  by  private  capital,  with  a  view  of  leas- 
ing such  additions  to  it.""  But  if  no  provision  of  the  constitu- 
tion prohibit  the  investment,  a  statute  may  provide  that  a 
municipality  may  take  stock  in  a  company  organized  to  furnish 
light  to  a  city  and  its  inhabitants.^"  A  statute  forbidding  a 
municipality  to  make  any  subscription  to  the  capital  stock  of 
an  incorporated  company  or  loan  its  credit  for  the  benefit  of 
such  company,  is  not  violated  by  an  agreement  in  water  con- 
tract to  pay  the  hydrant  rentals  to  the  bondholders  of  the  com- 
pany supplying  the  water. ^^ 
§519.     Right  to  purchase  plant  of  gas  company. 

Statutes  frequently  authorize  a  municipality  to  bind  itself  to 
purchase  the  plant  of  a  gas  company  at  the  end  of  a  term  of 
years  during  which  it  supplies  it  with  light ;  ^'  and  without  such 
an  express  statute  there  is  nothing  objectionable  to  such  a  con- 
tract. It  simply  authoi^irzes  the  purchase  of  a  plant  already  in 
existence,  instead  of  the  municipality  undertaking  to  build  a 
nlant  of  its  own.^^ 


29  Ampt  V.  Cincinnati,  56  Ohio 
St.  47;  37  Wkly.  L.  Bull.  IGl;  46  N. 
E.  Rep.  69;  35  L.  R.  A.  737;  modi- 
fying 12  Ohio  C.  C.  119;  1  Ohio  C. 
D.    356. 

30  See  Marlborough  Gaslight  Co. 
V.  Neal,  166  Mass.  217;  44  N.  E. 
Rep.  139;  Memphis  v.  Memphis 
Gayoso  Gas  Co.,  9  Heisk.  531. 

31  State  V.  Great  Falls,  19  Mont. 
518;   49   Pac.  Rep.   15. 

A  city  may  be  authorized  to  take 
l)onds  in  a  gas  company.  New  Or- 
leans V.  Clark,  95  U.  S.  644.  In 
England,  it  may  issue  stock  to  es- 
tablish a  lighting  plant.  Sheffield 
'•.  Sheffield  Electric  Light  Co. 
riS98].  1  Ch.  203;  77  L.  T.  Rep. 
616:  67  L.  J.  Ch.   (N.  S.)   113.^ 

32>Jeosho  City  Water  Co.  v.  Ne- 
osho, 136  Mo.  498;  38  S.  W.  Rep. 
89. 

33  See  Wheeling  Gas  Co.  v.  Wheel- 
ing, 8   W.  Va.  320. 


If  the  price  to  be  paid  by  the  city 
is  to  be  fixed  by  arbitrators,  part 
chosen  by  the  city  and  part  by  the 
gas  company,  and  the  former  choose 
its  arbitrators  and  notify  the  com- 
pany; and  the  gas  company  refuse 
to  select  any,  the  city's  remedy  is  to 
apply  for  a  writ  of  mandamus  to 
compel  it  to  select  its  arbitrators, 
and  not  a  suit  in  equity  to  enforce 
a  sale  at  the  price  fi.Ked  by  the 
city's  arbitrators.  St.  Louis  v.  St. 
Louis  Gaslight  Co.,  70  Mo.  69. 

Vvhere  a  municipality  had  the 
power  to  purchase  certain  gas 
works,  and  certain  moneys  were  to 
be  raised  for  this  and  other  pur- 
poses, an  injunction  to  restrain  the 
municipality  from  opposing  a  bill 
promoted  by  the  gas  company  to  ex- 
tend its  works  was  refused,  on  the 
ground  that  such  extension  might 
prevent  the  municipality  from  pur- 
chasing the  works,  by  e.xceeding  in 


MUNICIPALITY    SUPPLYING    GAS.  569 

§520.     Trustees  for  gas  works. 

Occasionally  trustees  are  appointed  to  manage  gas  works 
where  they  are  conducted  by  a  municipality.  This  was  the  case 
with  the  Philadelphia  gas  plant.  That  plant  was  owned  by 
private  individuals,  and  was  taken  possession  of  by  that  city. 
The  stock  was  replaced  by  certificates  issued  by  the  city  to  the 
stockholders  according  to  their  several  holdings,  and  trustees 
were  selected  and  given  full  control  of  the  works  and  their  man- 
agement ;  and  they  were  to  create  a  fund  to  pay  off  these  cer- 
tificates and  the  indebtedness.  After  these  trustees  had  taken 
charge,  an  ordinance  was  passed  by  the  common  council  ap- 
pointing a  chief  engineer,  who  was  by  it  put  at  the  head  of  the 
gas  department  of  the  city ;  and  all  moneys  collected  for  gas 
furnished  was  to  be  paid  to  such  officers  as  he  should  select. 
Creditors  objected  to  the  engineer  taking  possession,  and  to  his 
interfering  with  the  trustees'  control  of  the  gas  works ;  and  the 
court  upheld  them  in  their  objection,  and  issued  an  order  re- 
straining them.  They  were  entitled,  so  the  court  held,  to 
an  injunction  on  the  ground  that  there  was  such  a  contract  be- 
tween the  city  and  the  creditors  as  a  court  of  equity  would 
protect ;  and  that  when  it  entered  upon  such  an  enterprise  it 
was  acting  in  its  capacity  as  a  private  corporation,  and  not  in 
its  legislative  capacity.^*  These  trustees  are  generally  subject 
to  the  control  of  the  municipality,  and  have  only  such  powers 
as  its  common  council  or  legislative  body  may  bestow  upon 
them.  An  instance  of  their  limited  power  is  found  in  an 
Ohio  case.  In  that  State  a  statute  provided  for  a  board  of 
trustees  to  manage  the  municipality's  gas  plant;  and  also  em- 
powered them  to  "  prescribe  by  bylaws  the  price  of  gas  and 
coke,  under  such  rules  and  regulations  as  by  ordinance  the 
council  may  prescribe."      The  board  in  the  absence  of  such  an 

value  the  sum  allotted  to  the  mu-  Am.  Dec.  730.     See  Bailey  v.  Phila- 

nieipality  by  its  act  for  expenditure  delphia,  184  Pa.  St.  594 ;  41  W.  N. 

for  this  and  other  purposes.     Attor-  C.  5-^9 ;   39  Atl.  Rep.  494 ;   39  L.  R. 

ney    General   v.   Mayor    of    St.    He-  A.   837    (affirming  6  Pa.  Dist.  Rep. 

lens,  W.  N.   (1870)    150.  727;    20   Pa.   Co.   Ct.    173,   where   a 

34  Western  Saving  Fund  Society  lease  of  these  works  was  upheld). 
V.  Philadelphia,  31  Pa.  St.  175;   72 


570  OIL    AND    GAS. 

ordiuance  undertook  to  fix  the  price  of  gas,  over  the  objection 
of  the  gas  company ;  and  their  action  was  held  void.^^  In  this 
State  it  is  also  held  that  so  long  as  an  ordinance  is  in  force 
creating  a  board  of  officers  to  manage  the  city's  gas  plant,  the 
council  cannot  take  upon  itself  the  management,  through  its  em- 
ployees, of  its  electric  lighting  plant.^®  The  statute  referred  to 
in  the  foregoing  sentence  authorized  the  common  council  to 
create  and  appoint  a  board  of  trustees,  when  it  had  determined 
to  build  a  lighting  plant,  to  construct  the  works,  and  to  manage 
them  when  they  should  have  been  built.  The  board  could  not 
only  construct  the  works,  but  extend  gas  pipes,  manufacture 
and  sell  gas  and  coke,  collect  gas  bills  and  other  moneys  due 
for  gas,  coke  or  other  material  sold  by  it,  having  power  to 
purchase  material,  employ  laborers,  appoint  officers,  purchase 
or  lease  the  necessary  i"eal  estate  and  erect  buildings  upon  it. 
All  luoney  collected  for  gas  works  purposes  had  to  be  deposited 
weekly,  by  its  collectors*with  the  treasurer  of  the  municipality, 
and  be  kept  as  a  separate  and  distinct  fund,  subject  to  the 
order  of  the  board.  This  money,  as  Avell  as  that  levied  by 
the  municipality  for  the  gas  works,  was  to  be  disbursed  by  the 
board  of  trustees.  It  was  held  that  the  board  of  trustees  did 
not  have  power,  under  this  statute,  to  charge  the  nuinicipality 
wath  a  general  liability  on  account  of  machinery  or  appliances 
purchased  by  them  for  the  works  under  their  control ;  and  that 
they  had  no  authority  to  control  the  funds  thus  placed  in  their 
hands  independent  of  the  council,  because  of  another  statute 
which  provided  that  "  no  contract,  agreement  or  other  obliga- 
tions, involving  the  expenditure  of  money  shall  be  entered  into, 

35  Foster  v.  Findlay,  5  Ohio  Cir.  let  it  to  the  lowest  bidder  as  the 
Ct.  Rep.  455;  3  Ohio  Cir.  Dec.  224.  city  did  when  it  purchased  sup- 
vSee  Bellaire  Goblet  Co.  v.  Findlay,  plies,  for  the  reason  that  the  gas 
5  Ohio  Cir.  Ct.  418;  3  Ohio  Cir.  works  were  not  a  department  of  the 
Dec.  205.  city  government  within  the  provi- 
so Shaw  V.  Jones.  6  Ohio^Dcc.  sion  of  the  Act  of  May  13,  1856, 
453 ;  4  Ohio  N.  P.  372.  requiring  the  city  to  advertise  for 
In  a  case  involving  the  Philadel-  bids  and  let  out  the  supply  of  ma- 
phia  gas  trustees'  power,  it  was  terials  to  the  lowest  bidder.  Hack- 
held  that  they  were  not  required  er  v.  Philadelphia,  6  Phila.  94. 
to   advertise   for   bids   for   coal   and 


MUNICIPALITY    SUPPLYING    GAS.  571 

nor  shall  any  ordinance,  resolution  or  order  for  the  appropria- 
tion or  expenditure  of  money  be  passed  by  the  city  council  or 
by  any  board  or  officers  of  a  municipal  corporation  "  unless  the 
city  auditor  or  clerk,  ''  shall  first  certify  that  money  required 
for  the  contract  .  .  .  or  to  pay  the  appropriation  or  ex- 
penditure, is  in  the  treasury  to  the  credit  of  the  fund  from 
Avhich  it  is  to  be  drawn,  and  not  appropriated  for  any  other 
purpose.''  ^"  A  statute  of  this  same  State  provides  that  no 
municipal  officer  until  one  year  after  his  office  has  expired, 
shall  be  either  directly  or  indirectly  interested  in  the  work  of 
his  city.  Under  this  statute  one  of  the  gas  trustees  cannot  be 
employed  by  the  others  until  the  end  of  such  year,  to  supervise 
the  property  of  the  city  in  the  territory  where  the  gas  is  ob- 
tained and  where  the  leased  lands,  of  the  city  are  located,  or 
manage  its  works.^^ 

§521.     Sale  of  municipal  plant. 

A  municipality  usually  has  the  power  to  sell  its  lighting 
plant ;  but  this  power  is  usually  given  under  the  statutes  au- 
thorizing it  to  dispose  of  its  property  generally.  Thus  a  statute 
empowered  a  municipality  "  to  acquire  by  purchase  or  other- 
wise and  hold  real  estate,  or  any  interest  therein,  and  other 
property  for  the  use  of  the  corporation,  and  to  sell  or  lease  the 
same,"  and  it  was  held  that  under  this  clause  it  might  sell' 
its  gas  plant,  the  court  saying  that  the  statute  "  clearly  gives 
the  city  the  ]X)wer  to  make  such  sale  whenever,  in  the  judgment 
of  the  officers  of  the  city,  it  becomes  for  the  best  interests  of 
such  city."  ^®  In  a  sale  of  its  plant,  as  a  part  of  the  considera- 
tion, the  municipality  may  bind  itself  to  pay  such  a  greater  sum 
per  light  as  will  be  equal  to  the  taxes  to  be  paid  by  the  company, 
even  in  the  event  that  such  municipality  had  no  right  to  ex- 
empt the   purchasing   company   from  taxation. *°     A   provision 

37  Kerr  v.  Bellefontaine,   59  Ohio  lin  Bros.  Co.  v.  Toledo.  20  Ohio  C. 
St.  446;   52  N.  E.  Rep.   1024.  C.  60.3;   8  Ohio  X.  P.  62. 

38  Findlay  v.   Parker.   17  Ohio  C.  4o  Frankfort  v.  Capitol  City,  etc., 
C.  294;  9  Ohio  Cir.  Dec.  710.  Co..  16  Ky.  L.  Rep.  780;   29  S.  W. 

39  Thompson  v.  Nemeyer,  59  Ohio  Rep.  855. 
St.  486;   52  N.  E.  Rep.   1024;   Ker- 


572  OIL    AlMD    GAS. 

in  the  contract  of  sale  to  the  effect  that  the  company  shall  ful- 
fill its  contract  to  furnish  gas  to  the  extent  that  such  contracts 
can  be  fulfilled,  the  purchaser  must  make  all  necessary  con- 
nections for  the  furnishing  of  gas  which  were  customarily 
niade.'*^ 

§522.     Municipality  may  lease  its  own  gas  works. 

A  city  owning  its  gas  works  ma}'  sell,  lease,  or  altogether 
abandon  them ;  and  the  lease  is  not  an  interference  with  the 
executive  functions  of  its  board  of  public  works  which  has 
their  direction,  control  and  administration.  In  the  execution 
of  such  a  lease  there  is  no  delegation  of  any  municipal  power, 
legislative  or  otherwise,  which  involves  a  municipal  duty.  In 
the  ownership  and  control  of  gas  works  a  city  acts  in  a  business 
capacity  only ;  and  the  inability  of  its  common  council  to  bind 
the  discretion  of  its  successors  for  a  term  of  years,  in  respect 
to  municipal  or  governmental  function,  is  not  involved  in  the 
granting  of  the  lease.  In  such  a  lease  the  municipality  may 
bind  itself  that  it  will  not  in  any  way  interfere  with,  restrict, 
limit  or  imi^eril  the  exclusive  right  vested  in  the  lessee  by  the 
lease  where  the  municipality  had  the  sole  right  and  was  the 
only  company  supplying  gas  in  the  municipality  ;  and  such  a 
lease  does  not  create  a  monopoly  against  public  policy  where 
the  franchise  of  the  lessee  is  derived  from  the  State,  and  not 
from  the  municipality,  and  it  merely  makes  the  privilege  ex- 
clusive so  far  as  the  municipality  is  concerned.'*'^  The  lease 
by  the  council  of  the  city's  gas  works  for  a  definite  period  — 

41  Pittsburg  Carbon  Co.  v.  Phila-  an  applicant  for  a  lease  than  upon 
delphia,  130  Pa.  St.  438;  18  Atl.  the  amount  of  his  bid ;  and  that  the 
Rep.    732.  holders    of    the    gas    lease    had    no 

42  Bailey  v.  Philadelphia,  184  Pa.  standing  to  enjoin  the  lease  of  the 
St.  594;  41  W.  N.  C.  529;  39  Atl.  gas  works;  as  the  promise  of  the 
Rep.  494;  39  L.  R.  A.  837;  63  Am.  city  to  apply  a  certain  per  cent  of 
St.  Rep.  812;  affirming  6  Pa.  Dist.  the  receipts  from  the  works  to  the 
Rep.  727;  20  Pa.  Co.  Ct.  173.  In  sinking  fund  created  for  the  pay- 
the  lower  court  it  was  also  held  that  ment  of  the  bonds  was  only  a  prom- 
the  discretion  given  to  a  city  coun-  ise,  and  of  no  greater  sanctity  than 
oil  to  lease  the  city's  gas  works  in-  the  promise  to  pay  the  bonds  at 
vested  them  with  power  to  lay  more  maturity. 

stress    upon    the    responsibility    of 


MU:^ICIPALITY    SUPPI.YING    GAS.  573 

as  twenty  years  —  does  not  necessarily  constitnte  a  suspension 
of  the  legislative  power  of  succeeding  councils,  and  is  not  for 
that  reason  void,*^  The  city  may  bind  itself  not  to  again  en- 
gage in  the  manufacture  and  sale  of  gas  so  long  as  the  lease 
continues.** 

§523.     Rules  and  regulations. 

When  a  municipality  engages  in  supplying  gas  to  private 
consumers,  it  may  adopt  rules  and  regulations  for  supplying 
such  gas,  the  same  as  a  private  company ;  and  the  legislature 
may  authorize  the  board  of  trustees  or  commissioners  to  do 
so ;  *^  and  no  doubt  the  common  council  may  also  adopt,***  or 
authorize  such  board  to  adopt  all  necessary  and  reasonable  rules 
for  that  purpose.  For  non-payment  of  bills,  or  for  abuse  in  its 
use  or  violation  of  proper  rules  the  supply  may  be  cut  ofF.*^ 
It  may  provide  by  ordinance  that  where  the  gas  is  shut  off  for 
failure  to  pay  gas  bills,  it  shall  not  be  turned  on  again  until 
such  bills  are  paid  with  the  penalty  that  may  be  due  and  all 
expenses  of  turning  it  off.**  A  municipality  can  no  more  dis- 
criminate between  consumers  than  a  private  company.*" 

43  Higgins  V.  San  Diego,  118  Cal.  46  Altoona  v.  Shellenberger,  6  Pa. 
524;  45  Pac.  Rep.  824;  50  Pac.  Rep.       Dis.   Rep.   544. 

670;  Newport  v.  Newport  Light  Co.,  4T  Brass  v.  Rathbone,  supra.     Al- 

84  Ky.   166.  toona  v.  Shellenberger,  supra. 

44  Bailey   v.    Philadelphia,    supra.  48  Altoona  v.  Shellenberger,  supra. 

45  Brass  v.  Rathbone,  153  N.  Y.  49  Rierker  v.  Lancaster,  14  Lane. 
435;   47  N.  E.  Rep.   905;   affirming  L.   Rev.   393. 

40  N.  Y.  Supp.  466;  8  App.  Div.  78. 


CHAPTER  XXV. 

THE  GAS  COMPANY  AND  CONSUMER. 

§524.  No  requirement  at  common  law. 

§525.  Company  must  supply  gas. 

§526.  No  discriminations. 

§527.  Failure  of   supply  of   natural   gas. —  Discrimination. 

§528.  Supply  only  to  abutting  property  owners. 

§529.  Extension  of  mains  or  pipes. 

§530.  Inspection  of  premises. 

§531.  Mandamus  to  compel  supply. 

§532.  Mandamus  to  compel  furnishing  of  gas   to   a  city. 

§533.  Penalties  for   failure  to   supply   gas  — Damages. 

§534.  Damages  for  failur^to  supply  gas. —  Sickness. 

§535.  Limiting  liability  for  failure  to  supply  gas. 

§536.  Application  for  gas. 

§537.  Rules  and  regulations. 

§538.  Subscribing  to  rules  and  regulations. 

§539.  Price  to  be  charged. 

§540.  Payment  in   advance. 

§541.  Deposits. 

§542.  Discrimination  in  use. —  Rates. 

§543.  Classification  of   customers. —  Rates. 

§544.  Recovering  back  overcharges. 

§545.  Collection  of  rents. —  Action. 

§546.  Collection  of  rents  by  distress. 

§547.  Shutting  off  gas  for  failure  to  pay. 

§548.  Injunction  to  prevent  cutting  off  gas  supply. —  Rates. 

§549.  Consumer's  right  to  discontinue  use  of  gas. 

§550.  Ownership  of  supply  pipe. 

§524.     No  requirement  at  common  law. 

At  common  law  tliere  was  no  obligation  upon  a  gas  company 
'to  supply  either  the  mmiicipality  or  an  individual  with  gas; 
and  this  is  the  result  of  ^le  early  decisions  in  this  country  and 
England.  The  right  to  have  gas  delivered  by  a  gas  company 
was  placed  purely  upon  contract;  and  aside  from  a  contract  it 
was  considered  that  no  obligation  rested  upon  the  company  to 

574 


GAS    COMPANY    AND    CONSUMER.  575 

furnish  it.  A  gas  company  was  regarded  as  a  purely  private 
concern,  being  neither  a  public  or  quasi-public  corporation.  It 
was  regarded  the  same  as  if  it  were  an  individual  —  a  person 
—  who  owned  a  gas  plant  and  manufactured  gas.^  And  the 
fact  that  the  company's  pipes  occupied  the  street  in  the  front 
of  an  abutting  land  owner's  property  did  not  impose  upon  it  a 
duty  to  supply  such  land  owner  with  gas.  "  Xo  duty  is  im- 
posed upon  them,"  said  the  Supreme  Court  of  Massachusetts, 
''  nor  are  they  charged  Avith  any  public  trust.  They  are  au- 
thorized to  make  and  distribute  gas  for  their  own  profit  and 
gain  only.  They  are  not  bound  to  sell  and  dis]X)se  of  it  to  any 
one,  either  for  public  or  private  use  or  consumption.  It  is 
entirely  at  their  option  whether  they  will  exercise  their  cor- 
porate rights  and  privileges  at  all ;  and  if  they  undertake  to 
manufacture  and  dispose  of  gas,  the  extent  to  which  they  shall 
carry  on  the  business  is  left  to  their  own  election.  Xor  is  any 
power  conferred  on  them  to  take  private  property,  not  prev- 
iously appropriated  to  a  public  use,  for  the  purpose  of  exer- 
cising and  enjoying  their  franchise.  The  only  right  or  privi- 
lege given  to  them  is  to  dig  up  public  streets  and  ways  for  the 
purpose  of  laying  down  their  mains  or  pipes."  "  So  in  I^^ew 
Jersey  "  power  and  authority  to  manufacture,  make  and  sell  gas 
for  the  purpose  of  lighting  the  streets,  buildings  and  manu- 
factories and  other  places  situate  in  "  a  certain  town  was  held 
to  be  merely  permission ;  and  the  company  could  refuse  to 
supply  a  resident  of  the  town,  although  it  at  the  time  was 
supplying  some  of  the  inhabitants  of  such  town.^  And  even 
though  a  company  has  begun  to  supply  a  customer  gas,  who 
has  his  premises  all  fitted  up  with  gas  pipes  and  fixtures  to 
receive  the  gas,  it  may  discontinue  the  supply  of  gas  at  any 
time  unless  it  is  under  a  contract  to  supply  it,'*  even  though 
he,  by  such  discontinuance,  will  suffer  more  than  nominal  dam- 

iSee     Jersey     City     Gas     Co.     v.  27  N.  J.  L.  245;   72  Am.  Dec.  360. 

Dwight,  29  N.  J.  Eq.  242.  See  now  Olmstead  v.  Morris  Aqiie- 

-  Commonwealth    v.    Lowell    Gas-  duct,  47  X.  J.  L.  311. 
xight   Co.,    12    Allen   75.  4  MeCune    v.    Norwich    City    Gas 

3  Patterson  Gaslight  Co.  v.  Brady,  Co.,  30  Conn.  521;  79  Am.  Dec.  278. 


576  OIL    AND    GAS. 

ages.^  Nov  does  the  fact  of  quarterly  payments  or  the  hiring 
of  a  meter  by  the  year,  or  of  the  company  being  the  only  one 
in  the  neighborhood  furnishing  gas,  afford  any  ground  for  im- 
plying a  contract  to  furnish  gas ;  ^  nor  even  where  the  company 
holds  a  deposit  to  secure  payment  for  gas  used.''^ 

§525.     Company  must  supply  gas. 

But  the  better  line  of  authority,  and  the  more  recent  cases, 
aside  from  any  statute,  ordinance  or  contract  expressly  require 
ing  it,  hold  that  gas  companies  must  supply  those  whose  prop- 
erty abutts  upon  their  lines  and  that  the  duty  rises  from  the 
character  of  such  institutions,  they  being  quasi-public  corpora- 
tions and  occupying  the  streets  and  public  highways.^  "  A 
natural  gas  company,"  said  the  Supreme  Court  of  Indiana, 
"  occupying  the  streets  of  a  town  or  city  with  its  mains,  owes 
it  as  a  duty  to  furnish  those  who  own  or  occupy  the  house 
abutting  on  such  streef,  where  such  owners  or  occupiers  make 
the  necessary  arrangements  to  receive  it  and  comply  with  the 
reasonable  regulations  of  such  company,  such  gas  as  they  may 
require,  and  that  where  it  refuses  or  neglects  to  perform  such 
duty,  it  may  be  compelled  to  do  so  by  writ  of  mandamus."  ^ 
It  is  especially  true  such  companies  are  under  a  duty  to  supply 
persons  whose  property  abutts  on  their  lines,  where  they  have  an 
exclusive  grant  or  monopoly  of  the  supplying  of  gas  in  that 

5  Pudsey  Coal  Gas  Co.  v.  Brad-  o  Portland  Natural  Gas  Co.  v. 
ford,  L.  R.  15  Eq.  167;  21  W.  R.  State,  135  Ind.  54;  34  N.  E.  Rep. 
2^6;  42  L.  J.  Ch.  293;  22  Gas  J.  818;  21  L.  R.  A.  639;  Spratt  v. 
54;  Commonwealth  v.  Wilkes-  South  Metropolitan  Gas  Co.,  7  Gas 
Barre  Gas  Co.,  2  Kulp   (Pa.)   499.  J.   663;    Baltimore   Gaslight   Co.   v. 

6  Hoddesdon  Gas  and  Coke  Co.  v.  Colliday,  25  Md.  1 ;  Indiana,  etc., 
Haselwood,  6  C.  B.  (N.  S.)  239;  5  Gas  Co.  v.  State,  158  Ind.  516;  63 
Jur.  (N.  S.)  1013;  28  L.  J.  C.  P.  N.  E.  Rep.  220;  57  L.  R.  A.  761; 
268;   7  W.  R.  415;   8  Gas  J.  261.  Jordeson    v.    Sutton,    etc.,    Co.,    67 

7Houlgate   v.    Surrey  Consumers'  L.  J.  Ch.  666;   [1898]  2  Ch.  614;  79 

'Gas   Co.,   8   Gas   J.   261.  L.  T.  478;   47  W.  R.  222;   63  J.  P. 

8  Commercial  Bank  v.  London  Gas  137;   affirmed  68  L.  J.  457;    [1899] 

Co.,   20   Up.   Can.    Q.   B.   233;    Wil-  2  Ch.  217;   80  L.  T.  815;   63  J.   P. 

liams  V.  Mutual  Gas  Co.,  52  Mich.  692;    People  v.    Chicago   Gas   Trust 

499;    50  Am.   Rep.   266;    18   N.   W.  Co.,  130  111.  268;  22  K  E,  Rep.  798; 

Rep.    236;    4    Am.    and    Eng.    Corp.  8  L.   R.  A.  497. 
Cas.   66. 


GAS    COMPANY    a:XD    COIS'SUMER. 


i77 


mimicipalitv;  ^^  or  the  right  of  eminent  domain  to  secure  a 
right  of  way  for  their  pipe  lines/^  In  many  instances  the  duty 
to  furnish  the  inhabitants  of  a  municipality  with  gas  is  en- 
forced bv  statute  or  bv  ordinance/' 


10  New  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  115  U.  S.  650;  (5 
Sup.  Ct.  Rep.  252;  People  v.  Man- 
hattan (jras  Co.,  45  Barb.  136;  1 
Abb.  Pr.  (N.  S.)  404;  30  How  Pr. 
87 ;  Shepherd  v.  Milwaukee  Gaslight 
Co..  11  Wis.  234;  15  Wis.  318;  82 
Am.  Dec.  679;  0  Wis,  539;  Owens- 
boro  Gaslight  Co.  v.  Hildebrand,  19 
Ky.  L.  Rep.  983;  42  S.  W.  Rep. 
351;  Brunswick  Gaslight  Co.  v.  U. 
S.,  etc.,  Co.,  85  Me.  532;  27  Atl. 
Rep.  525;  35  Am.  St.  Rep.  385; 
43  Am.  and  Eng.  Corp.  Cas.  459; 
St.  Louis  V.  St.  Louis  Gaslight  Co., 
70  Mo.  69;  Shephard  v.  Milwaukee 
Gaslight  Co.,  6  Wis.  539;  70  Am. 
Dec.  479;  Indiana,  etc.,  Co.  v.  State, 
158  Ind.  516;  63  N.  E.  Rep.  220;  57 
L.   R.  A.   761. 

11  Coy  V.  Indianapolis  Gas  Co., 
146  Ind.  655;  46  N.  E.  Rep.  17; 
36  L.  R.  A.  535;  8  Amer.  and  Eng. 
Corp.  Cas.  (X.  S.)  771;  Gibbs  v. 
Consolidated  Gas  Co.,  130  U.  S. 
396;  9  Sup.  Ct.  Rep.  953;  State  v. 
Consumers'  Gas  Trust  Co.,  157  Ind. 
345;  61  N.  E.  Rep.  674;  55  L.  R. 
A.  245;  Hangen  v.  Albina,  etc.,  Co., 
21  Ore.  411;  28  Pac.  Rep.  244;  14 
L.  R.  A.  424;  Crumley  v.  Watauga 
Water  Co.,  99  Tenn.  420;  41  S.  W. 
Rep.  1058;  American,  etc..  Co.  v. 
State,  46  Neb.  194;  64  N.  W.  Rep. 
711 ;  30  L.  R.  A.  447;  State  v.  Butte 
City  Water  Co.,  18  Mont.  199;  44 
Pac.  Rep.  966 ;  32  L.  R.  A.  697 ;  56 
Am.  St.  Rep.  574;  4  Am.  and  Eng. 
Corp.  Cas.  (N.  S.)  238;  Hoehle  v. 
Allegheny  Heating  Co.,  5  Pa.  Super. 
Ct.  21;  New  York  Central,  etc..  R. 
R.  V.  Metropolitan  Gaslight  Co.. 
5  Hun  201 ;  Morey  v.  Metropolitan 
Gaslight   Co.,   38   N.   Y.    Super.   Ct. 


It  is  the  duty  of  a  gas 


185 ;  Schmeer  v.  Gaslight  Co.,  147 
N.  Y.  529;  42  N.  E.  Rep.  202;  30 
L.  R.  A.  653;  70  N.  Y.  St.  Rep.  92; 
Woodburn  v.  Auburn,  87  Me.  287 ; 
32  Atl.  Rep.  906;  Mackin  v.  Port- 
land Gas  Co..  38  Ore.  120;  61  Pac. 
Rep.  134  (rehearing  denied,  62  Pac. 
Rep.  20)  ;  49  L.  R.  A.  596;  Watau- 
ga Water  Co.  v.  Wolfe,  99  Tenn. 
429;  41  S.  W.  Rep.  1060;  Graves  v. 
Key  City  Gas  Co.,  93  la.  470;  61 
N.  W.  Rep.  937;  Griffin  v.  Golds- 
boro  Water  Co.,  122  N.  C.  206;  30 
S.  E.  Rep.  319;  41  L.  R.  A.  240; 
Crescent  Steel  Co.  v.  Equitable  Gas 
Co.,  23  Pittsb.  Leg.  J.  (N.  S.)  316; 
Bath  Gaslight  Co.  v.  Claffey,  74 
Hun  638;  26  N.  Y.  Supp.  287;  No- 
blesville  v.  Noble.svillc  Gas,  etc.,  Co., 
157  Ind.  162;  60  N.  E.  Rep.  1032; 
People's  Gaslight  and  Coke  Co.  v. 
Hale.  94  III.  App.  406;  Cincinnati, 
etc.,  Co.  V.  Bowling  Green,  57  Ohio 
St.  336;  49  N.  E.  Rep.  121;  People 
V.  N.  York,  etc.,  Co..  56  N.  Y.  Supp. 
364;  New  Orleans,  etc.,  Co.  v. 
Paulding.  12  Rob.  (La.)  378;  Jen- 
kins V.  Columbia,  etc.,  Co.,  13  Wash. 
502;  43  Pac.  Rep.  328;  Bailey  v. 
Fayette  Gas  Fuel  Co.,  193  Pa.  St. 
175;  44  Atl.  Rep.  251;  44  W.  N.  C. 
505. 

12  Jones  V.  Rochester  Gas.  etc., 
Co.,  7  N.  Y.  App.  Div.  465 ;  39  N.  Y. 
Supp.  1105;  Ferguson  v.  Metropoli- 
tan, etc.,  Co.,  37  How  Pr.  189;  Mo- 
rey V.  Metropolitan  Gaslight  Co., 
38  N.  Y.  Supr.  185;  Pearson  v. 
Phoenix  Gas  Co.,  12  Gas  J.  09; 
Commercial  Gas  Co.  v.  Scott.  L.  R. 
10  Q.  B.  400;  25  Gas  J.  889;  Smith 
V.  Capitol  Gas  Co.,  132  Cal.  209; 
64   Pac.   Rep.   258. 


178 


OIL    AND    GAS. 


company  to  furnish  gas  to  a  customer  even  though  he  is  fur- 
nished gas  by  another  company.  It  is  the  customer's  privilege 
to  quit  the  other  company  if  he  sees  fit;  or  to  take  from  both 
of  them.^^  Even  in  England  where  formerly  it  Avas  held  that 
no  obligation  rested  upon  a  company  to  furnish  gas ;  yet  if 
the  company  had  entered  into  a  contract  to  furnish  it,  and 
failed  to  do  so,  it  was  liable  in  damages.^* 

§526.     No  discriminations. 

Not  only  is  it  the  duty  of  a  gas  company  to  furnish  gas, 
but  it  is  its  duty  to  treat  all  alike.  It  cannot  discriminate  be- 
tween customers  either  in  prices  or  in  imposing  upon  them 
regulations  not  applicable  to  all  of  their  customers  under  the 
same  circumstances.  It  must  furnish  gas  without  preference 
or  partiality,  whether  that  duty  be  imposed  by  statute  or  not.^^ 
This  statement,  however,  must  be  taken  with  the  qualification 
that  the  customer  has  ol*  is  willing  to  comply  with  all  reasonable 


13  Portland  Natural  Gas  Co.  v. 
State,  135  Ind.  54;  35  N.  E.  Rep. 
818;   21  L.  R.  A.  639. 

14  Whitehouse  v.  Liverpool,  etc., 
Co.,  5  C.  B.  798;  5  M.  Gr.  and  S. 
798. 

In  Commonwealth  v.  Wilkes- 
Barre  Gas  Co.,  2  Kulp  499,  it  is 
said  that  the  duty  of  a  gas  com- 
pany to  supply  all  persons  of  a 
municipality  with  gas  cannot  be  in- 
ferred like  the  duty  of  a  common 
carrier,  from  the  fact  that  it  is  en- 
gaged in  business ;  the  duty  arises 
only  from  the  charter. 

The  assignee  of  a  gas  company's 
right  to  furnish  gas  is  bound  by 
the  original  grant  of  the  privilege 
of  supplying  the  municipality  with 
gas.  Freeport  School  District  v. 
Enterprise  Natural  Gas  Co.,  18  Pa. 
Super.  Ct.  73. 

A  company  cannot  escape  its  duty 
to  supply  gas  by  assigning  its  fran- 
chise.    Bath    Gaslight   Co.   v.    Claf- 


ey,    74   Hun   638;    26   N.    Y.    Supp. 
287. 

15  Bailey  v.  Fayette  Gas  Fuel  Co., 
193  Pa.  St.  175;  44  Atl.  Rep.  251; 
44  W.  N.  C.  505;  Coy  v.  Indianap- 
olis Gas  Co.,  146  Ind.  655;  46  N. 
E.  Rep.  17;  36  L.  R.  A.  535;  8 
Am.  and  Eng.  Corp.  Cas.  (N.  S.) 
771;  Louisville  Gas  Co.  v.  Dulaney, 
100  Ky.  405;  38  S.  W.  Rep.  703;  36 
L.  R.  A.  125;  6  Am.  and  Eng.  Corp. 
Cas.  (N.  S.)  241;  Jones  v.  Roches- 
ter Gas,  etc.,  Co.,  7  N.  Y.  App.  Div. 
465;  .39  N.  Y.  Supp.  1105;  New  Or- 
leans Gaslight,  etc.,  Co.  v.  Pauld- 
ing, 12  Rob.  (La.)  378;  Portland 
Natural  Gas  Co.  v.  State,  135  Ind. 
54;  35  N.  E.  Rep.  818;  21  L.  R.  A. 
639;  Harbison  v.  Knoxville  ^Yate^ 
Co.  (Tenn.),  53  S.  W.  Rep.  993; 
Cincinnati,  etc.,  Co.  v.  Bowlnig 
Green,  57  Ohio  St.  336;  49  N.  E. 
Pep.  121;  People's  Gaslight  and 
Coke  Co.  V.  Hale,  94  111.  App.  40(1. 


GAS    COMPAlJsY    A?irD    COXSUMER.  579 

rules  and  regulations  of  the  company,  such  as  it  has  a  right 
to  adopt  and  im}X)se  upon  its  customers.^*^  A  refusal  of  the 
customer  to  sign  an  agi'eement  to  abide  by  unreasonable  rules 
will  not  deprive  him  of  the  right  to  a  supply  of  gas/'  In- 
stances of  discrimination  v\ill  appear  in  succeeding  sections; 
but  a  few  may  be  added  here.  Thus  the  company  cannot  re- 
quire a  deposit  of  money  by  a  particular  customer  to  secure 
the  payment  of  its  charge,  when  it  does  not  require  such  de- 
posits of  all  its  customers. ^^  "\Miere  a  water  company  laid  its 
pipes  in  the  street  to  supply  certain  persons  with  water  who  pay 
for  the  pipe  under  an  agi'eement  that  if  any  one  else  was 
furnished  water  from  the  company  should  reimburse  them  for 
the  amount  they  had  paid,  it  was  held  that  the  company,  not- 
withstanding this  agreement,  must  supply  all  those  whose  prop- 
erty abutted  upon  the  line,  even  though  the}'  had  not  paid  any- 
thing on  the  pipe.^^  Customers  who  are  stockliolders  in  the 
company  must  be  treated  as  other  customers,  and  cannot  be 
given  a  preferential  rate,  although  those  favored  constitute  a 
majority  of  the  owners  of  the  company's  stock.""  It  is  no 
excuse  that  the  amount  the  company  liy  statute  is  authorized  to 
charge,  if  it  is  charging  other  customers  less  than  the  amount 
of  the  charge  to  the  one  discriminated  against."^  So  it  is  an 
unjust  discrimination  to  adopt  a  rule  that  it  would  furnish 
no  gas  to  a  tenant,  and  would  only  deal  with  the  owner  of  the 
house  occupied  by  the  tenant  or  with  his  agent."'     But  it  is  not 

16  Williams    v.    Mutual    Gas    Co.,  lo  Hangen    v.    Albina    Light    and 

52  Mich.  499;    18  N.  W.  Rep.  236;  Water    Co.,    21    Ore.    411;    28    Pac. 

50  Am.  Rep.  266;   4  Am.  and  Eng.  Rep.  244;    14  L.  R.  A.  424. 
Corp.    Cas.    66;    Portland    Natural  20  Crescent  Steel  Co.  v.  Equitable 

Gas  Co.  V.  State,  supra;  Cincinnati,  Gas    Co.,    2.3    Pittsb.    Leg.     (X.    S.) 

etc.,   R.    R.    Co.    V.    Bowling   Green,  316. 

57  Ohio  St.  336;  49  N.  E.  Rep.  121;  21  Griffin  v.  Goldsboro  Water  Co., 

Owensboro    Gaslight    Co.    v.    Hilde-  122  N.  C.  206;   30  S.  E.  Rep.  319; 

brand,  19  Ky.  L.  Rep.  983 ;  42  S.  W.  41  L.  R.  A.  240. 
Rep.  351.  22  State  v.  Butte  City  Water  Co., 

iTShepard  v.  Milwaukee  Gaslight  18   Mont.    199;    44   Pac.    Rep.    966; 

Co.,  15  Wis.  318;   82  Am.  Dec.  679.  32  L.  R.  A.  697;   56  Am.   St.  Rep. 

18  Owensboro  Gaslight  Co.  v.  Hil-  574 ;    4   Am.    and   Eng.    Corp.    Cas. 

debrand.    19    Ky.    L.    Rep.    983;    42  (X.   S.)    238. 
S.  W.  Rep.  351. 


580  OIL    AND    GAS. 

an  unjust  discrimination  to  charge  a  less  rate  to  a  manufacturer 
using  a  certain  amount  in  one  plant  than  is  given  a  manu- 
facturer operating  several  disconnected  plants,  although  using 
as  much  as  the  larger  manufacturer.-^ 

§527.     Failure  of  supply  of  natural  gas. —  Discrimination. 

Another  phase  of  discrimination  is  a  refusal  to  supply  new 
customers  because  of  lack  of  gas  to  supply  both  them  and  its 
old  customers.  So  long  as  a  gas  company  occupies  the  streets 
of  a  municipality  with  its  pipes  it  must  serve  all  alike  whose 
property  abutts  upon  the  street  occupied  by  them.  A  defense  of 
its  inability  to  supply  all  its  customers  was  brought  forward 
by  a  natural  gas  company  organized  to  furnish  gas  at  actual 
cost;  but  the  court  held  it  was  not  a  sufficient  defense  to  an 
action  to  compel  gas  to  be  furnished  to  a  new  customer.  "  The 
legal  effect  of  the  answer,"  said  the  court,  "  is  that  the  relatrix 
shall  have  no  gas  because  her  neighbors,  in  common  right,  have 
none  to  spare.  It  is  admitted,  because  not  denied,  that  the 
relatrix  is  a  member  of  that  part  of  the  public  which  appellee 
has  engaged  to  serve.  As  such  she  has  borne  her  part  of  the 
public  burdens.  She  has  rendered  her  share  of  the  considera- 
tion. Bellefontaine  Street  in  front  of  her  house  has  beeen  dug 
up  and  her  property  made  servient  to  the  use  of  the  appellee 
in  laying  its  pipes,  and  in  carrying  forward  its  business,  and 
the  right  to  use  the  gas,  and  to  share  in  the  public  benefit,  thus 
secured,  whatever  it  may  amount  to,  is  equal  to  the  right  of 
any  other  inhabitant  of  the  city.  The  right  to  gas  is  held  in 
common  by  all  those  abutting  on  the  streets  in  which  appellee 
had  laid  its  pipes,  or  is  held  of  right  by  none.  The  legislature 
alone  can  authorize  the  doing  of  the  things  done  by  the  appellee, 
and  this  body  is  prohibited  by  the  fundamental  law  from  grant- 
ing a  sovereign  power  to  be  exercised  for  the  benefit  of  a  class, 
or  for  the  benefit  of  an^  part  of  the  public  less  than  the  whole 
residing  within  its  range.      Appellee's  contract  is  with  the  State 

23  St.  Loviis  Brewing  Ass'n  v.  St.  inate  between  consumers.  Rierker 
Louis    (Mo.),  37  S.  W.  Rep.  525.  v.  Lancaster,   14  Lane.  L.  Rev.  393. 

A    municipality    cannot    discrim- 


GAS    COMPANY    AND    CONSUMER.  581 

and  its  extraordinary  powers  are  granted  in  consideration  of  its 
engagement  to  bring  to  the  community  of  its  operations  a  public 
benefit;  not  a  benefit  to  a  few,  or  to  favorites,  but  a  benefit 
equally  belonging  to  every  citizen  similarly  situated  who  may 
wish  to  avail  himself  of  his  privilege,  and  prepare  to  receive 
it.  There  can  be  no  such  thing  as  priority  or  superiority  of 
right  among  those  who  possess  the  right  in  common.  That  the 
beneficial  agency  shall  fall  short  of  expectations  can  make  no 
difference  in  the  right  to  participate  in  it- on  equal  terms.  So  if 
the  appellee  has  found  it  impossible  to  procure  enough  gas 
fully  to  supply  all,  there  is  no  sufficient  reason  for  permitting 
it  to  say  that  it  will  deliver  all  it  has  to  one  class  to  the  ex- 
clusion of  another  in  like  situation.  It  is  immaterial  that 
appellee  was  organized  to  make  money  for  no  one,  but  to  supply 
gas  to  the  inhabitants  of  Indianapolis  at  the  lowest  possible  rate. 
It  has  pointed  us  to  no  special  charter  privilege,  and  under  the 
law  of  its  creation,  certain  it  is,  that  its  imselfish  purpose  will 
not  relieve  it  of  its  important  duty  to  the  public.  The  principle 
here  announced  is  not  new.  It  is  as  old  as  the  common  law 
itself.  It  has  arisen  in  a  multitude  of  cases  affecting  railroad, 
navigation,  telegraph,  telephone,  water,  gas  and  other  like  com- 
panies and  has  been  many  times  discussed  by  the  courts  and  no 
statute  has  been  deemed  necessary  to  aid  the  courts  in  holding 
that  when  a  person  undertakes  to  supply  a  demand  which  is 
affected  with  a  public  interest,  it  must  supply  all  alike  who 
are  alike  situated,  and  not  discommode  in  favor  of,  nor  against 
any."  '' 

§528.     Supply  only  to  abutting  property  owners. 

The  general  rule  is  that  a  gas  company  is  required  to  supply 
only  property  abutting  upon  the  company's  lines  or  mains. 
There  are  many  dicta  to  this  effect.'^     But  this  question  is  often 

-*  State  V.  Consumers'  Gas  Trust  Gas  and  Oil  Co.  v.  State,  135  Ind. 
Co.,  157  Ind.  345;  61  N.  E.  Rep.  54;  .34  N.  E.  Rep.  818;  21  L.  R.  A. 
674;  55  L.  R.  A.  245;  Rierker  v.  639;  Shepard  v.  Milwaukee  Gas- 
Lancaster,   14  Lane.  L.   Rev.   303.  light  Co.,  6  Wis.  539;    70  Am.  Dec. 

25  Grii!in  v.  Goldsboro  Water  Co.,  479 ;      Commonwealth      v.      Wilkes- 

122  N.  C.  206;   30  N.  E.  Rep.  319;  Barre  Gas  Co.,  2  Kulp  499;   Coy  v. 

41  L.  R.  A.  240;   Portland  Natural  Indianapolis  Gas  Co.,  146  Ind.  655; 


582  OIL    AND    GAS. 

regulated  by  a  statute  or  ordinance  frequently  requiring  the 
company  to  furnish  gas  to  persons  not  upon  its  lines ;  as  where 
they  live  within  a  ''  reasonable  distance  from  the  line  of  main 
pi^Des,"  in  which  event  what  is  a  "  reasonable  distance  "  is  a 
question  for  the  courts.'*'  Where  a  statute  required  a  company 
to  furnish  gas  to  the  occupant  of  a  building  within  100  feet  of 
any  of  its  mains,  it  was  held  that  the  100  feci  was  the  space  be- 
tween its  nearest  main  and  the  nearest  portion  of  the  building, 
and  not  to  the  ]>ortion  for  which  gas  -was  desired."'  Of  course,  if 
there  is  a  special  contract  existing  between  the  would-lw  con- 
sumer and  the  company,  then  it  is  not  a  question  whether  or  not 
the  consumer  is  an  abutting  property  owmer,  or  his  property  lies 
within  the  prescribed  distanco ;  and  even  though  the  company 
is  not  bound  to  supply  the  applicant  gas,  by  reason  of  the  fact 
that  his  property  is  too  remote,  yet  if  it  accept  his  application, 
with  a  full  knowledge  of  that  fact,  it  cannot  deny  him  the  right 
to  the  gas  after  such  acceptance.  Xo  doubt  the  company  can 
require  of  such  an  applicant  an  extra  price  for  the  gas,  and  for 
putting  in  pipe  to  his  premises ;  for  the  whole  matter  lies  in  a 
special  contract  and  not  in  a  general  duty  to  supply  the  public. 

§529.     Extension  of  mains  or  pipes. 

A  gas  company  is  not  bound  to  extend  its  mains  or  pipes  to 
territory  not  occupied  by  it,  unless  a  statute,  or  a  binding 
ordinance,  its  charter  or  a  contract  requires  it  to  do  so,  even 
though  it  have  the  privilege  to  occupy  any  street  or  all  the 
streets  of  the  municipality.  But  the  matter  of  extension  of 
mains  almost  universally  is  governed  by  a  statute  or  the  com- 
pany's contract  (usually  embodied  in  an  ordinance)  with  the 
municipality.      Sometimes   the  municipal  governing  body  has 

46  N.  E.  Rep.  17;  36  L.  R.  A.  535;  26  West     Hartford     v.      Hartford 

8  Am.  and  Eng.  Corp.  Cas.   (K.  S.)  Water    Com'rs,    68    Conn.    323;    36 

771.     Even     though     the    line     was  Atl.  Rep.  786. 

paid  for  by  other  consumers,  so  long  -^  Jones    v.    Rochester    Gas,    etc., 

as  it  laid  in  the  street.     Hangen  v.  Co.,  7  N.  Y.  App.  Div.   465;   39  N. 

Albina    Light    and    Water    Co.,    21  Y.  Supp.   1105;   affirmed   158  N.  Y. 

Ore.  411;   28  Pac.  Rep.  244;    14  L.  678;  52  N.  E.  Rep.  1124. 
R.   A.   424. 


GAS    COMPANY    AXD    COXSTJMEK.  583 

the  power  to  order  and  enforce  an  extension  of  the  mains ;  and 
in  other  instances  the  gas  company  is  bound  to  extend  a  main 
only  iijwn  application  of  a  certain  number  of  persons  agreeing 
to  take  gas. 

§530.     Inspection  of  premises. 

Elsewhere  has  been  discussed  the  right  of  a  company  to  in- 
spect the  meter  and  so  much  of  the  pij^e  as  lies  between  the 
meter  and  the  company's  mains, —  or  as  it  is  frequently  called, 
the  supply  pipe."^  The  right  of  the  company,  however,  to 
inspect  the  house  pipes,  chandeliers,  gas  burners,  furnaces, 
stoves  and  heaters  in  which  gas  is  burned,  is  another  question. 
In  the  case  of  furnaces,  stoves  and  heaters  where  the  company 
has  lawfully  reserved  the  right  to  insist  upon  the  use  of  certain 
kinds,  there  is  no  doubt  of  the  right  of  the  company  to  insist 
upon  an  insjDection  at  proper  times  under  proper  limitations, 
to  see  if  their  requirements  have  been  complied  with.  And  per- 
haps the  company  has  the  right  to  insist  upon  an  examination 
of  the  pipes,  burners  and  chandeliers  when  application  is  made, 
to  see  if  the  house  or  building  is  equipped  for  the  use  of  gas, 
although  there  is  some  doubt  on  the  question ;  for  the  company 
is  not  bound  to  furnish  gas  to  an  applicant  not  prepared  to 
properly  receive  it.'"  Thus  in  a  Xew  York  case  it  was  said 
"As  the  company  have  no  control  over  the  piping,  does  not  put 
it  in,  and  is  not  consulted  about  it,  the  principle  upon  which 
it  might  be  held  liable,  in  cases  of  this  character,  at  the  time 
of  the  first  delivery  of  gas,  if  no  precaution  were  taken  at  all, 
is  simply  that  it  Avould  have  the  right  to  refuse  to  turn  on,  or 
permit  others  to  turn  on,  the  gas  for  the  supply  of  the  appli- 
cants until  properly  assured  of  the  condition  of  the  piping  in 
other  portions  of  the  building.  Having  become  assured  of  it, 
and  the  gas  being  on,  it  would  not  seem  that  the  company  ought 
further  to  be  regarded  as  liable  for  the  continuous  good  con  di- 
ss See  Young  v.  Southwark,  etc.,  Barre  Gas  Co.  v.  Turner,  7  Kulp 
Co..    69   L.   T.    144;    41   W.   R.   622;        399. 

57  J.  P.  806 ;  5  R.  432.  and  Wilkes-  29  State     v.     Xew     Orleans,     etc., 

Co.    (La.),  32  So.  Rep.   179. 


584  OIL    AXD    GAS. 

tion  of  the  pipiug'.  Here  we  may  justly  say  that  to  impose 
such  a  liability  upon  the  defendant  would  clearly  be  unreason- 
able. It  would  render  necessary  the  examination,  at  frequent 
intervals,  of  all  the  buildings  in  the  city  in  which  gas  was  used. 
This  would  be  so  onerous  as  to  be  practically  impossible  of 
execution ;  because  of  the  expense  to  the  company."  '"*  Xo 
doubt  exists,  however,  that  a  company  may  adopt  a  rule  provid- 
ing for  inspection,  uptn  proper  notice  given  of  the  time  when  it 
would  be  made ;  and  perhaps,  the  rule  might  provide  for  in- 
spection at  any  time  during  business  hours  of  the  day."^  And 
an  agreement  on  the  part  of  the  consumer  to  permit  an  inspec- 
tion is  binding  upon  him.^'  Where  a  gas  company,  upon  con- 
tract with  the  owner  of  the  property,  laid  a  supply  pipe  from 
it  smain  to  his  house ;  and  gas  escaping  because  of  a  defect  in 
the  pipe,  causing  an  explosion,  the  company  was  held  lia])le.^^ 
This  liability  would,  of  course,  carry  a  right  to  enter  upon  the 
premises  to  inspect  the  supply  pii>e.  But  where  the  owner  of 
the  property  put  in  the  supply  pipe,  which  became  defective 
after  use,  and  an  explosion  occurred ;  it  was  held  that  the  com- 
pany was  not  liable,  because  of  the  fact  that  the  owner  of  the 
property  had  put  in  the  pipe.  From  this  it  would  seem  that 
the  company  had  no  right  to  inspect  the  supply  pipe.^* 

§531.     Mandamus  to  compel  supply. 

Any  person  whose  property  abuts  upon  a  gas  company's  line, 
(and  a  tenant  is  such  a  person),  and  who  has  complied  Avith  the 
rules  and  regulations  of  the  company,  and  prepared  his  house  or 
building  for  the  reception  of  gas,  and  is  not  in  arrears  for  gas 
supplied  in  the  manner  and  form  heretofore  discussed, ^^  may 
compel  the  company  by  a  writ  of  mandamus  to  supply  him  with 
gas,  if  it  refuses  or  neglects  to  do  so  upon  proper  application 

■■'"Sehmcer    v.    Gaslight    Co..    147  Coke  Co..  L.  R.  7  Ex.  OG ;  41  L.  J. 

X.   Y.  ,529;   42  -X.  E.  Rep.   202;    70  E.xch.  4G;    26   L.   T.   318;    20  W.  R. 

X.  Y.  St.  Rep.  92;  30  L.  R.^A.  G53.  493. 

31  Shepard  v.  ^Milwaukee  Gaslight  '4  Henderson   v.   Xew   Castle   and 

Co..  6  Wis.  539;    70  Am.  Dec.  479.  Galeshead  Gas  Co..  37  Sol.  J.  403. 

"•2  Wright   V.   Colchester   Gas   Co.,  35  State  v.  Xew  Orleans,  etc..  Co. 

30  Gas  J.  336.  (La.),  32  So.  Rep.  179. 

33  Burrows     v.     March     Gas     and 


GAS    COMPANY    AND    CONSUMER.  585 

made."*'  So  mandamus  will  lie  to  compel  a  deputy  inspector  of 
gas  meters  for  the  city  to  inspect  the  consumer's  meter,  and  if 
fou^id  correct,  to  seal  or  stamp  it,  where  a  statute  requires  all 
meters  to  be  used  to  be  examined,  sealed  and  stamped  before 
user.''^  To  entitle  the  applicant  to  the  writ,  it  is  not  necessary 
that  he  should  have  an  interest  in  the  company  different  from 
that  held  by  other  citizens ;  and  it  is  no  defense  that  he  is 
already  supplied  by  another  company.^*  But  the  consumer 
must  be  ready  to  receive  the  gas  when  he  makes  his  apiplication 
for  it  and  when  he  applies  for  a  writ  of  mandamus ;  for  a 
company  should  not  be  subject  to  the  costs  and  annoyance  of 
such  a  proceeding  where  a  customer  is  not  ready  to  use  the  gas.^""^ 
If  the  company  has  demanded  an  illegal  rate,  it  is  not  necessary 
for  the  consumer  to  tender  the  amount  actually  payable,  where 
the  rate  is  payable  in  advance,  before  bringing  his  action ;  but 
in  his  petition  he  may  state  his  abilit}^  to  pay  and  a  willingness 
to  do  so  upon  granting  the  writ  or  before  any  gas  is  actually 
furnished.**'  The  duty  to  supply  gas  includes  turning  it  on 
when  applied  to  for  that  purpose,  the  proper  connections  having 
been  made,  the  meter  furnished  where  the  company  is  bound 
to  furnish  one.*^  As  a  rule  the  right  to  the  writ  is  limited  tp 
those  whose  property  abuts  upon  the  company's  mains  or  pipes ; 

36  Richmond,  etc.,  Gaslight  Co.  v.  Rep.  236;   50  Am.  Rep.  266;   4  Am. 

Middletown,  59  In.  Y.  228;  1  T.  and  and    Eng.    Corp.    Cas.    66.     Contra, 

C.   143;    People  v.  Manhattan   Gas-  Commercial    Bank    v.    London    Gas 

light  Co.,  45  Barb.  136;   1  Abb.  Pr.  Co.,  20  Up.  Can.  Q.  B.  N.  C.  233; 

(N.  S.)   404;  30  How  Pr.  87;  State  State    v.     New     Orleans,     etc.,     Co. 

V.    Consumers'   Gas   Trust   Co.,    157  (La.),  32  So.  Rep.  179. 

Ind.    345 ;    61    N.   E.   Rep.    674 ;    55  37  in  re  McDonald,  16  N.  Y.  Misc. 

L.  R.  A.   245;    Shepard  v.  Milwau-  Rep.  304;  39  N.  Y.  Supp.  367. 

kee    Gaslight   Co.,    6   Wis.    539;    70  ss  Portland  Gas  Co.  v.  State,  su- 

Am.    Dec.    479;    Portland    Natural  jjra. 

Gas  and  Oil  Co.  v.   State,   135  Ind.  so  Portland  Gas  Co.  v.  State,  sii- 

54;  35  N.  E.  Rep.  818;  21  L.  R.  A.  pra ;    Shepard    v.    Milwaukee    Gas- 

639;    Hangen   v.    Albina    Light   and  light  Co.,  supra. 

Water    Co.,   21    Ore.    411;    28    Pac.  4o  Northern  Colorado,  etc.,  Cq.  v. 

Rep.  244;    14  L.  R.  A.  424;    Crum-  Richards,     22    Colo.    450;     45    Pac. 

ley  V.  Watauga  Water  Co.,  99  Tenn.  Rep.   423. 

420;    41    S.   W.   Rep.    1058;    Bloom-  4i  Schmeer    v.    Gaslight    Co.,    147 

field,  etc.,  R.  R.  Co.  v.  Richardson,  N.  Y.  529;   42  N.  E.  Rep.  202;   70 

63  Barb.  437 ;  Williams  v.  Mutual  N.  Y.  St.  Rep.  92 ;  30  L.  R.  A.  653. 
Gas   Co.,   52  Mich.   499;    18   N.   W. 


586  OIL    AXD    GAS. 

and  it  is  not  awarded  to  those  to  whom  the  company  would  not 
be  compelled  to  extend  its  mains,  especially  if  the  cost  of  the 
extension  would  be  out  of  proportion  to  the  income  that  would 
be  received/^  But  this  question  is  often  regulated  by  statute 
or  an  ordinance  requiring  the  company  to  extend  its  mains  to 
regions  not  occupied  by  it  upon  demand  of  a  prospective  cus- 
tomer or  of  a  certain  number  of  customers.  It  is  no  defense 
to  the  writ  that  the  company  has  not  enough  gas, —  as  natural 
gas, —  to  supply  its  then  customers ;  and  to  compel  them  to  take 
on  additional  customers  would  injure  their  present  customers.*^ 
If  the  company  would  have  the  right  to  turn  off  the  gas,  if  it 
were  supplying  it,  because  of  a  failure  of  the  applicant  to  pay 
past  bills  that  he  owes,  then  he  cannot  successfully  insist  upon 
his  rights  to  the  writ ;  and  this  is  true  even  though  they  had 
furnished  him  gas  upon  ]^s  application  after  such  bills  were 
due.*®  A  person  who  intends  to  make  only  occasional  use  of  the 
gas  is  not  entitled  to  the  writ  as,  for  instance,  to  use  it  only 
when  the  electric  light  in  his  house  should  fail.*^ 

§532.     Mandamus  to  compel  furnishing  of  gas  to  a  city. 

There  is  no  doubt  that  a  municipality  may  compel  a  gas 
company  to  furnish  gas  under  a  contract  it  has  with  it,  the  same 
as  a  private  individual ;  and  is  not  compelled  to  resort  to  an 
action  for  damages.*^ 

§533.     Penalties  for  failure  to  supply  gas. —  Damages. 

Often  statutes  inflict  penalties  u]X)n  a  gas  company  for  a 
neglect  or  refusal  to  furnish  gas.      This  is  especially  true  in 

43  state  V.  Consumers'  Gas  Trust  press  Co.  v.  Cincinnati  Gaslight  and 

Co.  stiprja;  Hangen  v.  Albina  Light  Coke    Co.,    10    Ohio    Dec.    389;    21 

and  Water  Co.,  suvra.  Wkly.    Law    Bull.    18. 

45  State  V.  Consuvners'  Gas  Trust  48  Toledo  v.  N.  W.   Ohio  Natural 

Co.,  supra.  Gas  Co.,  5  Ohio  C.   C.  557;   3  Ohio 

40  People   V.   Manhattan   Gaslight  Cir.  Dec.  273 ;    Williams  v.  Mutual 

Co.,  45  Barb.  136;  30  How.^r.  87;  Gas  Co.,  52  Mich.  499;  50  Am.  Bcp. 

1   Abb.  Pr.    (N.  S.)    404.  26G;  18  N.  W.  Rep.  286;  4  Am.  and 

4T  .Smith   V.  Capitol  Gas  Co.,   132  Eng.  Corp.  Cas.  66;   People  v.  New 

Cal.  209;    64  Pac.   Rep.  258;    Flem-  ^ork.    etc.,    Water    Co.,    56    N.    Y. 

ing      V.      Montgomery      Light      Co.  Supp.  364. 
(Ala.),  13  So.  Rep.  618;  Adams  Ex- 


GAS    COMPANY    AXD    CON'SUMER.  587 

England.  Thus  a  statute  of  that  C(juntrY^''  provides  that  if 
it  be  shown  before  any  two  justices  of  the  peace  "■  that  any  day 
the  gas  supplied  by  the  undertakers  is  under  less  pressure,  of 
less  illuminating  power,  or  of  less  purity  than  it  ought  to  be 
according  to  the  provisions  of  ''  that  or  of  a  sjjecial  act  referred 
to,  "  the  undertakers  shall  in  every  such  case  forfeit  and  pay 
to  the  local  authority  or  other  persons  making  application  for 
testing  the  gas  such  sum  not  exceeding  twenty  pounds,  as  the 
justices  shall  determine."'  It  was  held  that  this  statute  applied 
to  a  case  where  the  company  improperly  cut  off  the  gas,  for 
the  reason  that  a  refusal  or  neglect  to  supply  gas  was  a  neglect 
or  refusal  to  supply  it  under  the  pressure  the  statute  required.^" 
Under  this  statute  the  penalties  form  the  only  remedy,  no  action 
lying  for  damages. ^^  Under  this  and  similar  statutes  it  is  held 
in  that  country  that  the  consumer  cannot  set  up  as  a  defense 
the  gas  supplied  was  of  an  inferior  quality,  such  a  defense 
being  only  ground  for  claiming  a  fine  from  the  company."'  In 
]S[ew  York  it  was  held  that  the  company  was  not  liable  to  place 
a  gas  meter  on  plaintiff's  floor,  where  he  resided  in  an  apart- 
ment house,  if  gas  was  furnished  the  building,  unless  he  put  in 
a  separate  service  or  supplying  pipe.^"  A  statute  requiring  a 
gas  company  to  supply  the  owner  or  occupant  of  a  building 
rendering  the  company  liable  to  only  one  action  to  recover  a  pen- 
alty, for  a  failure  to  supply  gas,  of  ten  dollars,  and  the  further 
sum  of  five  dollars  for  every  day  of  refusal ;  and  a  subsequent 
action  for  penalties  accruing  during  the  continuance  of  the 
default   in  the  absence  of  a  new  application  cannot  be  main- 

4934    and    35    Vict.     [1871],    Cli.  402);     Clegg    v.     Earby     Gas     Co. 

41,  Sec.  36.  [1896],  1  Q.  B.  592;  65  L.  J.  Q.  B. 

50  Commercial  Gas  Co.  v.  Scott,  339.  See  Johnston  v.  Toronto  Con- 
L.  R.  10  Q.  B.  400;  44  L.  J.  M.  C.  sumers'  Gas  Co.  [1898],  App.  Cas. 
171;  32  L.  T.   (N.  S.)   765;  23  W.  R.  447;   78   L.  T.  270. 

874;  44  L.  J.  Q.  B.  715.  52  Porquay  Gas  Co.  v.  Carter,  32 

51  Atkinson  v.  New  Castle  W.  W.  Gas  J.  490;  Great  Central  Gas  Con- 
Co.,  L.  R.  2  Exch.  Div.  441;  46  L.  sumers'  Co.  v.  Tallis,  3  Gas  J.  5. 
J.  Exch.  775;  25  W.  R.  794;  36  See  Gaslight  and  Coke  Co.  v.  St. 
L.  T.  761  (reserving  L.  R.  6  Exch.  George.  42  L.  J.  Q.  B.  (N.  S.)  50. 
Div.  404 ;  20  W.  R.  35.  and  disap-  53  Ferguson  v.  ;Metropolitan  Gas- 
proving  Couch  V.  Steel,  3  E.  and  B.  light  Co.,   37  How  Pr.   189. 


588 


on.    AND    GAS. 


tained.^*  Under  the  Iscw  York  statute  before  the  penalty  is 
incurred,  an  application  must  be  presented,  stating,  among  other 
things,  the  number  of  lights  (and  in  case  of  an  olcetric  lighting 
company,  how  much  power)  is  required,  especially  where  the 
company  at  the  time  it  receives  the  application  requested  such 
information.^^ 


54  Jones  V.  Rochester,  etc.,  Co., 
168  N.  Y.  65;  60  N.  E.  Rep.  1044; 
reversing  64  N.  Y.  Supp.  1138. 

In  Jones  v.  Rochester,  etc.,  Co., 
Co.,  39  N.  Y.  Supp.  1105,  1110;  7 
N.  Y.  App.  Div.  465;  affirmed  15S 
N.  Y.  678;  52  N.  E.  Rep.  1124,  it 
was  held  that  a  succession  of  penal- 
ties under  this  statute  may  be  re- 
covered in  successive  actions.  In 
this  case  there  was  a  dispute  fe- 
Lween    the    customer    and   company. 

The  statute  referred  to  in  these 
cases  did  n-ot  apply  to  natural  gas 
companies  organized  under  the 
"  business  corporation  law."  Wil- 
son V.  Tennant,  70  N.  Y.  Supp.  2; 
61  N.  Y.  App.  Div.  100;  affirming  65 
N.  Y.  Supp.  852;  32  Misc.  Rep. 
(]SJ.  Y.)    273. 

55  Andrews  v.  North  River,  etc., 
Co.,  23  N.  Y.  Misc.  Rep.  512;  51 
N.  Y.  Supp.  872. 

In  England  where  a  statvtte  re- 
qviired  water  rates  to  be  paid  quar- 
terly in  advance,  a  water  company 
is  not  liable  to  a  penalty  for  a  fail- 
ure to  supply  water  if  the  com- 
plainant has  not  paid  the  rate  in 
advance,  although  it  is  not  the  cus- 
tom of  the  company  to  take  prepay- 
ment. Kyffin  V.  East  London  W. 
W.  Co.,  66  Gas  Jr.  243;  Thorn  v. 
East  London  W.  W.  Co..  66  Gas 
Jr.  189;  Sheffield  W.  W.  Co.  v. 
Brooks.  8  Q.  B.  Div.  632;  51  t.  J- 
M.  C.  97;  30  W.  R.  889;  46  J.  P. 


548.  See  Sheffield  \Y.  W.  Co.  v. 
Wilkinson,   4    C.   P.   Div.   410. 

The  laws  of  New  York,  1859,  Ch. 
3311,  Sec.  6,  imposing  a  penalty  on 
gaslight  companies,  which,  for  ten 
days  atter  an  application  for  gas 
neglects  to  supply  it,  applies  where, 
although  gas  has  been  furnished 
within  the  ten  days,  there  has  been 
a  neglect  to  give  a  continuous  sup- 
ply. Meiers  v.  Metropolitan  Gas- 
light  Co.,    11    Daly    119. 

In  Alabama  a  municipal  corpora- 
tion may  adopt  an  ordinance  im- 
posing a  fine  or  imprisonment  on 
an  officer  or  employee  of  a  water 
company  for  the  exaction  of  a  rate 
in  excess  of  that  stipulated  in  a  con- 
tract between  the  company  and  the 
city  for  a  supply  of  water  for  the 
city  and  its  citizens,  but  not  for 
the  commission  of  an  act  authorized 
by  such  contract.  Crosby  v.  Mont- 
gomery, 108  Ala.  498;  18  So.  Rep. 
723. 

A  municipality  cannot  adopt  an 
ordinance  requiring  a  railroad  com- 
pany to  maintain  a  particular  kind 
of  light  at  its  crossings  in  its  mu- 
nicipal bovmdaries,  though  it  may 
require  it  to  maintain  a  sufficient 
light  to  protect  travelers.  Cleve- 
land, etc.,  Ry.  Co.  v.  Connersville, 
147  Ind.  277;  46  N.  E.  Rep.  579; 
Contra,  Cincinnati,  etc..  R.  R.  Co. 
Co.  V.  Bowling  Green,  57  Ohio  St. 
336;   49  N.  E.  Rep.   121. 


GAS    COMPAKY    AND    CONSUMEE.  589 

§534.     Damages  for  failure  to  supply  g'as. —  Sickness. 

Where  a  company  undertakes  to  supply  a  customer  of  a  mu- 
nicipality with  gas  under  an  ordinance  requiring  it  to  do  so, 
or  under  its  general  public  duty,  and  it  fails  to  do  so,  especially 
nfter  it  has  begun  to  supply  him,  it  will  be  liable  to  him  in 
an  action  of  tort  for  all  damages  traceable  to  the  wrong  done, 
arising  without  an  intervening  agency  and  without  the  fault  of 
the  injured  party.  And  it  is  also  a  tort,  under  such  circum- 
stances, where  a  contract  existing  between  the  company  and  the 
consumer,  such  as  is  usually  entered  into  by  consumers  in  a 
municipality.  '^  The  failure  to  perform  such  a  contract  is  in 
itself  a  '  tort.'  "  ^°  In  such  an  instance  it  is  no  defense  for  the 
company  that  it  did  not  have  the  gas  to  furnish  or  enough  to 
furnish  the  fnll  amount  it  had  agreed  to  furnish  if  it  fully 
supplied  other  customers ;  nor  is  it  a  defense  that  the  consumer 
could  have  recovered  back  an  amount  of  the  sum  he  paid  pro- 
portionate with  the  amount  of  gas  it  had  failed  to  supply. 
In  such  an  action  the  consumer  may  show  that  other  consumers 
in  buildings  received  an  insufficient  supply,  where  it  is  shown 
that  such  buildings  were  attached  by  means  that  would  furnish 
as  nuicli  or  more  gas  than  the  attachment  at  his  own  stove. 
If  the  company  take  pay  for  the  gas  and  retain  it,  it  is  no 
excuse  that  the  supply  of  gas  failed,  and  it,  for  that  reason 
could  not  keep  its  contract.  ]^or  is  it  a  defense  that  the  con- 
sumer removed  his  mixer  and  burned  the  gas  without  using  it, 
ns  the  rules  of  the  company  and  his  contract  with  it  required, 
it  having  received  pay  for  the  gas  in  advance.^^  Where  there 
is  a  failure  to  supply  merely  illuminating  gas,  the  consumer  has 
a  right  to  recover  back  not  only  what  he  has  paid  for  the  gas 

!^6  Coy    V.    Indianapolis    Gas    Co.,  only  a  statement  of  the  reasonable 

146  Ind.  6.55;  46  N.  E.  Rep.  17;   36  conditions    under    which    the    com- 

L.    R.    A.    5.35 ;    8    Am.    and    Eng.  pany   was   required   to   perform    its 

Corp.    Cas.    (N.    S.)    771;    Indiana,  duty.)      Shepard  v.  Milwaukee  Gas- 

etc,    Gas   Co.   v.    Anthony,    26   Ind.  light  Co.,  15  Wis.  .318;  82  Am.  Doc. 

App.  307;  58  N.  E.  Rep.  868;  Hocli-  u;9. 

le  V.  Allegheny  Heating  Co..  5   Pa.  ^''  Indiana,    etc..    Gas    Co.    v.    An- 

Super.  Ct.  21;  40  W.  N.  C.  553;  28  thony.  26  Ind.  App.   307;   58  N.  E. 

Pittsb.  L.  J.    (N.  S.)    65.      (This  is  Rep.  868. 
esr)eciallv    true    if    the    contract    is 


590  OIL    AND    GAS. 

not  furnished,  but  also  the  damages  he  has  suffered  in  his  busi- 
ness, as  well  as  for  the  inconvenience  and  annoyance  experi- 
enced by  him  in  his  business,  if  it  was  to  be  supplied  for  the 
purpose  of  lighting  up  his  business  establishment,  arising  out 
of  the  refusal  to  furnish  gas.^*  This,  of  course,  would  include 
loss  of  profits.  And  where  the  owmer  of  a  business  house  pre- 
pared it  ready  to  receive  the  gas,  it  was  held  that  he  could 
recover  from  the  company  refusing  him  gas  the  depreciation  of 
the  property  for  sale  or  lease,  and  the  expense  of  restoring  the 
property  to  a  proper  condition,  divested  of  the  gas  pipes,  in 
addition  to  other  damage  legitimately  flowing  from  such  re- 
fusal.^** An  aeronaut  of  some  celebrity  brought  suit  to  recover 
damages  estimated  at  over  500  dollars,  occasioned  by  a  failure 
of  a  gas  company  to  keep  a  contract  to  supply  his  balloon  with 
gas,  on  an  occasion  of  an  intended  ascent  in  a  city ;  and  it  was 
held  that  the  plaintiff  was  entitled  to  maintain  the  action."" 
But  a  boarding  house  keeper  was  not  allowed  damages  for  loss 
of  the  profits  she  would  have  derived  from  her  boarders  who  left 
because  of  a  failure  of  the  company  to  furnish  gas."^  Yet 
where  a  natural  gas  (or  other)  gas  company  undertakes  to 
furnish  gas  for  heating  purposes,  and  fails  to  do  so,  it  will  be 
liable,  after  notice  of  the  probable  effects  of  such  failure  and  the 
consumers'  inability  to  procure  other  fuel,  in  damages,  for 
sickness  occasioned  thereby  to  the  consumer  and  his  family,  even 
for  the  death  of  his  child  or  wife,°"  unless  the  company  show 
that  it  was  beyond  its  power  to  furnish  the  gas.*'^     Where  a 

58  Shepard  v.  Milwaukee  Gaslight  ei  Morey  v.  Metropolitan  Gas  Co., 
Co.,  15  Wis.  318;  82  Am.  Dec.  679;  6  J.  and  S.  (N.  Y.)  185.  The  sound- 
Baltimore  Gaslight  Co.  v.  Collidaj%  ness  of  this  decision  may  well  be 
25  i\Id.  1 ;  Whitehouse  v.  Liverpool,  doubted. 

etc.,  Co.,  5  C.  B.  798;  5  M.  Gr.  and  62  Coy    v.    Indianapolis    Gas    Co., 

S.    798;    Kokomo,    etc.,    Co.    v.    Al-  supra;  Indiana,  etc..  Gas  Co.  v.  An- 

bright,   18  Ind.  App.  151;   47  N.  E.  tnony,  supra;  Hoehle  v.   Allegheny 

Rep.    682,    rental    of   houses   recov-  Heating  Co.,    5   Pa.   Super.   Ct.   21; 

ered.                                                  ^  40  W.  N.   C.   553;   28  Pittsb.  L.  J. 

59  Baltimore  Gaslight  Co.  v.  Col-  (N.   S.)    65. 

liday,    25    ]\Id.    1 ;    Bedding  v.    Im-  gs  Coy   v.    Indianapolis    Gas    Co., 

perial  Gaslight  Co.  7  Gas  J.  418.  supra. 

fio  Hampton  v.  Oxford  Gas  Co.,  3 
Gas  J.  64. 


GAS  co:mpany  axd  consumer.  591 

company  enters  into  a  contract  to  furnish  a  glass  factory  with 
gas  to  run  its  pots  and  failed  to  keep  it,  the  glass  business  being 
new  in  that  vicinity,  and  the  expense  necessarily  and  actually 
incurred  in  organizing  the  factory,  its  fair  rental  value  when 
idle,  if  it  had  any,  and  if  it  had  none,  the  interest  on  the  money 
invested  therein,  together  with  the  interest  on  any  idle  working 
capital,  the  value  of  which  had  been  lost  by  a  violation  of  the 
contract,  the  cost  of  bringing  new  and  skilled  workingmen  from 
a  distance,  none  being  in  that  vicinity ;  the  cost  of  their  trans- 
portation, and  the  compensation  agreed  or  required  to  be  paid 
for  the  service  of  the  glass  company's  affairs  may  be  treated  as  a 
part  of  the  necessary  expenses  and  damages  recoverable.^*  It  is 
no  defense  that  the  insufficient  supply  was  occasioned  by  the 
freezing  of  the  gas  mains,  if  the  company  was  careless  in  pro- 
tecting them  from  the  frost ;  and  the  presumption  is  that  the 
gas  mains  would  not  have  frozen  up  if  pro]3€rly  protected.*'"' 
If  the  company  improperly  cut  off  the  gas,  to  enforce  the  pay- 
ment of  a  bill  for  which  the  consumer  was  not  liable  to  pay,  it 
will  be  liable  for  the  damages  thereby  occasioned.*'"  But  a 
consumer  cannot  recover  damages  for  a  failure  to  supply  gas 
under  a  contract  giving  him  an  illegal  preference, —  as  with 
the  directors  and  stockholders, —  for  all  consumers  within  a 
municipality  must  be  served  alike.*'^ 

§535.     Limiting^  liability  for  failure  to  supply  gas. 

A  company  has  no  right  or  power  to  limit  its  liability  to 
furnish  a  sufficient  supply  of  gas  within  a  municipality.  A 
duty  is  imposed  by  law  to  supply  gas  against  which  it  cannot 
shield  itself  by  a  contract  w^ith  the  customer.*'^     If  the  supply 

64  Paola  Gas  Co.  v.  Paola  Glass  gt  Shoenberger  v.  Equitable  Gas 
Co.,  56  Kan.  614;  44  Pac.  Rep.  621.  Co.,   22  Pittsb.  L.  J.    (N.   S.)    347; 

65  Stock    V.     Boston,     149     Mass.  Crescent  Steel  Co.  v.  Equitable  Gas 
410;    21   X.   E.   Rep.   871.     Xot  lia-  Co.,  23  Pittsb.  Leg.  J.   (N.  S.)  316. 
ble   in    case    of    frost   oi  an   excep-  Where      no      pecuniary     loss      is 
tional    character.     In    re    Richmond  shown,  the  damages  recoverable  are 
Gas  Co.   [1893],   1   Q.  B.   56.  nominal.     Detroit  Gas  Co.  v.  More- 

66  Merrimac  River  Saving  Bank  ton.  etc.,  Co.,  Ill  Mich.'  401;  69 
V.  Lowell,   152  Mass.  556;  26  N.  E.  X.  W.  Rep.  659. 

Rep.   97;    10   L.  R.   A.   122.  es  Sec.  525. 


592  OIL    AND    GAS. 

in  case  of  natural  gas,  should  fail,  that  would  he  a  defense,  in 
ease  the  company  had  made  all  efforts  to  furnish  the  gas;  for 
natural  gas  is  an  article  that  cannot  be  manufactured,  a  quite 
different  situation  from  an  instance  of  supplying  artificial  gas. 
But  it  is  quite  another  proposition  Avhere  the  company  is  under 
no  duty  to  furnish  gas.  There  the  company  may  limit  its 
liability;  for  the  right  to  gas  in  that  case  rests  wholly  upon 
contract.  Thus,  in  case  of  natural  gas  the  contract  may  "be  to 
furnish  it  for  a  plant  so  long  as  the  company  has  gas,  and 
the  contract  is  not  void  for  indefiniteness,  even  though  the 
consumer  use  gas  for  domestic  purpases."*^  Where  a  company 
agreed  to  furnish  gas  to  certain  customers  so  long  as  with 
ordinary  diligence  and  outlay  it  could  procure  gas  under  the 
contracts  then  ordinarily  in  use  by  gas  companies,  it  was  held 
that  its  "  diligence  and  outlay  "  was  to  be  measured  as  of  the 
date  of  the  contract,  and  not  imder  conditions  entirely  altered.'" 

§536.     Application  for  gas. 

A  gas  company  may  require  the  applicant  for  gas  to  sign  a 
written  application,  containing  a  general  description  of  the 
premises  to  be  supplied  and  an  agreement  to  abide  by  the  rules 
and  regiilations  of  the  company.^^  But  if  any  of  the  rules  are 
unreasonable,  the  applicant  will  not  be  bound  by  them,  even 
though  he  agree  to  them ;  for  his  agreement  is  under  the  nature 
of  a  compulsion,  to  secure  a  service  to  which  he  is  otherwise 
entitled  to  have.  In  a  contest,  the  court  will  determine  whether 
or  not  the  rules  are  reasonable,  of  any  particular  one  of  which 
complaint  is  made.  These  rules  may  be  embodied  in  the  appli- 
cation ;  or  may  be  made  a  part  of  it  by  apt  words  of  reference 
thereto.      But  even  this  is  not  necessary ;  for  the  applicant  will 

69  Xenia  Real  Estate  Co.  v.  Macy.  7i  Williams  v.  Mutual  Gas  Co..  52 
147  Ind.  568;  47  N.  E.  Rep.  147;  Mich.  499;  18  N.  W.  Rep.  236;  50 
i3lack  Lick  V.  Saltsburg,  139  Pa.  St.  Am.  Rep.  266;  4  Am.  and  Eng. 
448;  21  Atl.  Rep.  432;  Whitman  v.  Corp.  Cas.  66;  Shepard  v.  Mihvau- 
Fayette  Fuel  Gas  Co.,  139  Pa.  f92;  kee  Gas  Co.,  6  Wis.  539;  70  Am. 
20  Atl.  Rep.   1062.  Dec.    479;     State    v.    New    Orleans, 

70  Crescent  Steel  Co.  v.  Equitable  etc.,   Co.    (La.),  32  So.  Rep.   179. 
Gas   Co.,  23   Pittsb.  L.   J.    (N.   S.) 

316. 


GAS    COMPAXY    AND    COI^SUMER.  593 

be  bound  by  all  reasonable  rules  of  tbe  company  brought  to  his 
attention  without  an  express  agreement  concerning  them/-  If 
only  an  oral  application  is  made,  and  the  company  refuse  to 
supply  gas  for  a  particular  reason,  not  refusing  because  a  writ- 
ten application  is  not  made,  it  thereby  waives  its  right  to  de- 
mand a  written  application,  although  its  rules  require  it.''' 
The  company  may  reserve  the  right  to  cut  off  the  gas  to  pre- 
serve itself  from  fraud  or  abuse ;  but  it  cannot  assume  to  itself 
the  whole  power  to  decide  upon  the  question  of  fraud  or  abuse, 
without  notice,  without  trial,  and  upon  its  own  mere  motion.^* 
Xor  can  it  insert  in  the  application  an  agreement  or  adopt  a  rule 
that  tlie  applicant,  after  admission  of  gas  into  his  pipes,  must 
not  disconnect  or  open  them  for  repairs  or  extensions,  or  other- 
wise, without  a  permit  from  the  company,  under  a  penalty  of 
three  times  the  amount  of  damages  sustained.'^  Where  a  rule 
of  the  company  required  the  application  to  be  in  writing,  the 
general  agent  and  manager  of  the  business  of  a  merchant  re- 
siding in  another  and  distant  city,  but  having  an  extensive 
mercantile  business  in  the  city  where  the  business  is  conducted, 
may  authorize  one  of  the  clerks  to  make  the  dejuand  for  the 
inerchant  for  a  supply  of  gas  in  the  city  where  such  business  is 
being  carried  on/''  And  a  company  cannot  reject  an  applica- 
tion of  a  tenant  on  the  gi'ound  that  it  had  adopted  a  rule  to  deal 
(inly  with  the  owner  or  his  agent  of  the  property  to  which  gas 
is  to  be  supplied."  ^Notice  to  supply  gas,  left  with  a  person  at 
the  company's  office  at  work  around  the  office  and  behind  tne 
desk,  where  such  person  had  attended  to  previous  notices,  and 
who  testified  that  he  was  a  clerk  in  the  employ  of  the  company, 
having  charge  of  job  work,  surface  work  and  the  gas  stove 
business,  was  held  sufficient  to  bind  the  company,  and  render  it 

72  Shiras  v.  Ewing,  48  Kan.  170;  "o  Shepard  v.  Milwaukee  Gas  Co., 
•29  Pac.  Rep.  320.  11    Wis.    234. 

73  Shepard  v.  Milwaukee  Gaslight  77  State  v.  Butte  City  Water  Co.. 
Co.,  supra.  18  Mont.  199;  44  Pac.  Rep.  966;  32 

74  Shepard  v.  Milwaukee  Gaslight  L.  R.  A.  697 ;  56  Am.  St.  Rep.  574 ; 
Co.,  supra.  4  Am.  and  Eng.  Corp.  Cas.   (N.  S.) 

75  Shepard  v.  Milwaukee  Gas  Co.,  238. 
6  Wis.  539;   70  Am.  Dec.  479. 


594 


OIL    AND    GAS. 


liable  to  a  penalty  for  failure  to  comply  tlierewith/*  It  is  a 
sufficient  defense  in  a  suit  for  damages  incurred  by  reason  of 
a  failure  to  furnish  gas  that  the  plaintiff  refused  to  sign  the 
rules  and  regulations  of  the  defendant,  but  that  fact  must  be 
set  up  specially  by  answer.  Yet  the  conduct  of  the  gas  company 
may  have  been  such  as  to  preclude  such  a  defense ;  as  where  it 
has  always  rested  its  refusal  on  other  grounds.  '  In  such  an  in- 
stance it  waived  all  other  defenses.'^'' 

§537.     Rules  and  regulations. 

A  gas  company  has  the  right  to  adopt  rules  and  regulations 
under  which  it  will  supply  its  customers ;  but  these  rules  must 
be  reasonable  and  not  impose  an  undue  burden  upon  the  cus- 
tomer.®°  Whether  or  not  the  rule  or  regulation  is  a  reasonable 
one  is  a  question  for  the  colTrt.  All  contracts  are  made  subject 
to  such  rules.^^  A  few  instances  of  the  reasonableness  or  the 
unreasonableness  of  rules  and  regulations  have   already  been 


■^s  Jones  V.  Rochester  Gas,  etc., 
Co.,  7  N.  Y.  App.  Div.  465;  39  N. 
Y.  Supp.  1105. 

In  this  case  it  was  also  held  that 
a  gas  company  is  subject  to  sepa- 
rate penalties  for  a  refusal  to  sup- 
ply gas  at  the  residence  and  also 
at  the  business  office  of  an  appli- 
cant, under  a  statute  providing  that 
if  a  gas  company  refuse  or  neglect 
to  supply  gas  for  ten  days  upon 
application  therefor  it  shall  forfeit 
and  pay  to  the  applicant  the  sum 
of  ten  dollars  and  the  further  sum 
of  five  dollars  for  every  day  during 
which  the  refusal  or  neglect  con- 
tinues. In  this  case  it  was  also 
hold  that  the  consent  of  the  appli- 
cant to  the  removal  of  the  meter 
from  the  premises  to  be  supplied 
during  the  controversy  over  hTs  lia- 
bility for  a  specified  amount  of  gas 
would  not  prevent  him  from  recov- 
ering the  penalty. 

TO  Shepard  v.  Milwaukee  Gas  Co., 


11  Wis.  234.  See  Northern  Colora- 
do, etc.,  Co.  V.  Richards,  22  Colo. 
450;    45   Pac.   Rep.   423. 

80  Louisville  Gas  Co.  v.  Dulaney, 
100  Ky.  405;  38  S.  W.  Rep.  703;  36 
L.  R.  A.  125;  6  Am.  and  Eng. 
Corp.  Cas.  (N.  S.)  241;  Shepard  v. 
Milwaukee  Gaslight  Co.,  6  Wis.  539; 
70  Am.  Dec.  479;  Portland  Natural 
Gas  Co.  V.  State,  135  Ind.  54;  34 
]N.  E.  Rep.  818;  21  L.  R.  A.  639; 
State  V.  Butte  Water  Co.,  18  Mont. 
199;  44  Pac.  Rep.  966;  32  L.  R.  A. 
697;  56  Am.  St.  Rep.  574;  4  Am. 
and  Eng.  Corp.  Cas.  (N.  S.)  238; 
Williams  v.  Mutual  Gas  Co.,  52 
Mich.  499;  18  N.  W.  236;  .50  Am. 
Rep.  206;  4  Am.  and  Eng.  Corp. 
Cas.  06;  Harbison  v.  Knoxville 
Water  Co.  (Tenn.),  53  S.  W.  Rep. 
993;  Pocatello  Water  Co.  v.  Stand- 
ley   (Idaho),  61  Pac.  Rep.  518. 

81  Shiras  v.  Ewing.  48  Kan.  170; 
29   Pac.   Rep.    320. 


GAS    COMPANY    AND    CONSUMER.  595 

given ;  and  other  instances  will  be  given  hereafter.  But  it  may 
be  added  that  a  rule  providing  that  if  a  customer  waste  water, 
when  not  furnished  bv  meter,  his  supply  may  be  cut  off,  is  a 
reasonable  one ;  *'  and  |>erhaps  the  same  would  be  true  if  the 
Avater  was  furnished  by  meter,  if  the  waste  Avas  so  great  that  the 
company  could  not,  by  reason  of  such  waste,  supply  its  other 
customers  with  a  sufficient  supply.  A  rule  providing  that  after 
gas  has  been  admitted  into  a  pipe,  the  pipes  should  be  neither 
opened,  extended,  nor  disconnected,  whether  they  are  opened, 
disconnected  or  extended  for  repairs  or  otherwise,  without  the 
company's  permit,  and  if  the  rule  in  these  particulars  is  vio- 
lated the  consumer  would  be  required  to  pay  triple  damages, 
is  invalid ;  for  the  company  had  no  power  to  imjwse  penalties 
and  make  a  customer  agree  to  the  right  to  impose  them  if  he 
violated  this  particular  regulation.  Another  rule  of  the  same 
company  providing  that  it  should  have  the  right  to  shut  off  the 
gas,  "  in  order  to  protect  itself  from  fraud  "  was  held  void ;  for 
such  a  question  falls  within  the  province  of  the  courts,  to  which 
the  company  must  resort  if  it  would  protect  itself.  A  still 
further  rule  provided  that  the  company  should  have  the  right 
to  enter  the  house  at  all  times  to  examine  the  whole  apparatus 
and  to  remove  the  meter  and  ser\'ice  pipes,  and  this  was  held 
invalid,  because  it  was  too  general.®^  It  is  the  duty  of  the 
company  to  inform  a  customer  of  its  rules  in  order  to  bind  him ; 
but  if  he  knows  them  it  will  not  be  necessary  to  inform  him. 
It  may  be  shown  that  he  became  aware  of  them  by  seeing  them 
printed  on  bills  presented  to  him.®* 

§538.     Subscribing  to  rules  and  regulations. 

If  the  rules  and  regulations  of  a  company  are  reasonable, 
the  company  may  require  an  applicant  for  gas  to  subscribe  to 

82  Shiras  v.  Ewing,  48  Kan.  170;  A  company  may  require  the  con- 
29  Pac.  Rep.  320.  sumer  to  prepare  his  plumbing  ac- 

83  Shepard  v.  Milwaukee  Gaslight  cording     to     certain     rules     it     has 
Co.,  6  Wis.  539 ;  70  Am.  Dec.  479.  adopted,    and    to    present    a    report 

81  Brass   v.   Rathbone,    153   N.   Y.  and  certificate  of  a   plumber  certi- 

435;  47  N.  E.  Rep.  905;  afiirming  8  fying  that  he  had  complied  with  its 

N.  Y.  App.  Div.  78;  40  N.  Y.  Supp.  rules.     State   v.   New  Orleans,   etc., 

466.  Co.    (La.),  32  So.  Rep.  179. 


596  OIL    AND    GAS. 

them,  or  agree  in  writing  to  be  governed  by  them,^^  and  if  he 
refuses  it  is  not  bound  to  furnish  him  gas.  But  if  they  are 
unreasonable,  he  is  not  bound  to  subscribe  to  them,  nor  agree 
to  abide  by  tliem;  and  regardless  of  them  he  may  maintain 
an  action  to  compel  the  company  to  furnish  him  with  gas.'^" 
In  an  application  for  a  writ  of  mandamus  to  compel  a  company 
to  supply  gas,  it  must  be  averred  that  the  applicant  is  ready 
to  comply  with  all  reasonable  rules  and  regulations  of  the  com- 
pany; but  if  any  of  its  rules  are  illegal,  then  such  illegality 
must  be  especially  set  up  and  described,  and  an  averment  made 
that  he  is  ready  to  abide  by  all  the  other  rules  of  such  com- 
pany.^^  A  company  by  insisting  upon  a  customer  to  sign  an 
application  binding  him  to  abide  by  illegal  rules  waives  its 
right  to  insist  that  he  failed  to  sign  a  proper  application  in  an 
action  against  it  for  damag^  because  of  its  failure  to  furnish 
gas.^^ 

§539.     Price  to  be  charged. 

If  a  statute  or  an  ordinance  fixes  the  price  the  company  may 
charge  for  gas,  such  company  cannot  exceed  the  price  named 
therein,  although  it  may  charge  less,  unless  such  statute  or 
ordinance  is  invalid  by  reason  of  it  having  been  enacted  after 
the  grant  of  the  company's  franchise,  without  any  reservation  to 
control  the  price  of  gas  furnished.  A  contract  with  a  munici- 
pality to  furnish  its  citizens  gas  at  not  to  exceed  a  certain 
figure  is  one  that  a  consumer  within  such  municipality  may 
enforce.®^     If  the   rates    are   not   fixed,    then   the   question    is 

85  Shepard  v.  Milwaukee  Gaslight  Rep.  674;  55  L.  R.  A.  245;  Port- 
Co.,  11   Wis.  234.  land,  etc.,  Co.  v.  State,  135  Ind.  .54; 

86  Shepard  v.  Milwaukee  Gaslight  35  N.  E.  Rep.  818;  21  L.  R.  A.  639. 
Co.,  6  Wis.  539;  70  Am.  Dec.  470;  ss  Shepard  v.  Milwaukee  Gas  Co.. 
State  V.  Sedalia  Gaslight  Co.,  34  11  Wis.  234;  Shepard  v.  Milwaukee 
Mo.  App.  501;  84  Mo.  202;  An-  Gas  Co.,  15  Wis.  318;  82  Am.  Dec. 
dicws      V.      North      River      Electric  679. 

Liglit,   etc.,   Co.,   23   Misc.    (N^^Y.)  so  Noblesville   v.   Noblesville   Gas, 

512;    51  N.  Y.   Supp.   872;    Shepard  etc..    Co.,    157    Ind.    162;    60    N.    E. 

V.  Milwaukee  Gaslight  Co.,  11  Wis.  Pvpp.    1032;    Watauga   Water  Co.  v. 

234.  Wolfe,  99  Tenn.  429;  41  S.  W.  Rep. 

8"  See    State    v.    Consumers'    Gas  1060. 
Trust  Co.,   157   Ind.  345;   61   N.  E. 


GAS    COMPANY    A2^D    CONSUMER.  597 

one  common  to  any  transaction  of  bnying  or  selling ;  ^°  although 
there  are  a  number  of  cases  which  liold  that  the  acceptance  of 
a  charter  or  franchise  by  a  gas  company  contains  an  implied 
agreement  that  the  rates  made  shall  be  reasonable  in  amount; 
usually  however,  no  effort  is  made  to  state  what  is  or  is  not 
a  reasonable  rate.^^  In  such  rates  there  can  be  no  discrimina- 
tion ;  ^"  not  even  by  charging  more  for  gas  used  for  lighting 
than  that  used  for  heating  or  manufacturing."'^  iSTor  can  the 
company  make  a  special  rate  to  those  owning  an  interest  in  it.^* 
But  it  has  been  held  that  a  gas  company  may  charge  one  rate 
in  a  neighborhood  where  it  comes  in  competition  with  another 
company ;  and  a  higher  rate  where  there  is  no  competition,  so 
long  as  the  latter  rates  do  not  exceed  the  rate  allow'ed  by  a 
statute.  It  is  said  a  reasonable  price  paid  by  one  is  not  made 
unreasonable  because  another  pays  less.**^  Where  the  ordinance 
by  which  a  gas  company  gains  admission  to  lay  its  mains  in 
the  street  and  supply  the  citizens  of  the  municipality  provides 
that  gas  shall  be  furnished  to  consiuners  upon  such  terms  and 
conditions  as  the  common  council  may  thereafter  determine,  a 
duty  is  imjwsed  upon  the  company  to  agree  with  the  council 
on  reasonable  terms ;  and  if  the  duty  be  disregarded,  the  court 
may  compel  obedience  to   the   ordinance   by   a   mandatory   in- 

90  See  Noblesville  v.  Noblesville  Dec.  214;  affirmed  27  Wkly.  L.  Bull. 
Gas  Co.,  157  Ind.  162;  60  N.  E.  Rep.       128. 

1032;  Philadelphia  Co.  v.  Park.  138  as  Bailey  v.  Fayette  Fuel  Gas  Co., 

Pa.   St.  346;   22  Atl.  Rep.  86.  193  Pa.  St.  175;  44  Atl.  Rep.  251; 

91  Cincinnati,  etc.,  R.  R.  Co.  v.  44  W.  N.  C.  505;  11  Am.  and  Eng. 
Bowling  Green,  57  Ohio  St.  336;  49  Corp.  Cas.  (N.  S.)  740;  Richmond 
N.  E.  Rep.  121;  People's  Gaslight  Natural  Gas  Co.  v.  Clawson,  155 
and  Coke  Co.  v.  Hale,  94  111.  App.  Ind.  659;  58  X.  E.  Rep.  1049;  51 
406;  Toledo  v.  X.  -^y.  Ohio  Natural  L.  R.  A.  744;  Bellaire  Goblet  Co.  v. 
Gas  Co.,  8  Ohio  S.  and  C.  P.  Dec.  Findlay.  supra;  Dalzell  v.  Findlay, 
277;  6  Ohio  N.  P.  531.  s!<25ra;  Cincinnati,  etc..  R.  R.  Co.  v. 

92  Griffin  v.  Goldsboro  Water  Co.,  Bowling  Green.  57  Ohio  St.  336 ;  49 
126  N.  C.  206;   30  S.  E.  Rep.  319;  N.   E.   Rep.    121. 

41  L.  R.  A.  240;   People's  Gaslight  94  Crescent  Steel  Co.  v.  Equitable 

and  Coke  Co.  v.  Hale,  supra:  Bell-  Gas  Co.,  23  Pittsb.  Leg.  J.    (N.  S.) 

aire  Goblet  Co.  v.   Findlay,   5  Ohio  316. 

Cir.  Ct.  Rep.  418;   Dalzell  v.  Find-  as  Baltimore  Gas  Co.  v.  Colliday, 

lay,  5  Ohio  Cir.  Ct.  435;  3  Ohio  Civ.  25  Md.  1. 


598  OIL    AND    GAS. 

junction."*'  Under  a  contract  to  furnish  gas  "  at  two-thirds  of 
the  lowest  average  price  at  Avhich  gas  shall  or  may  be  furnished  " 
in  five  specified  cities,  it  was  held  that  the  price  must  be 
determined  by  adding  the  five  lowest  cash  prices  in  those  cities, 
divide  the  sum  total  by  five,  and  multiply  the  result  by  two- 
thirds.**^  The  rate  to  be  paid  must  be  measured  by  the  rate 
maintained  in  cities  thus  named,  not  at  the  time  of  the  adop- 
tion of  the  ordinance,  but  with  the  fluctuation  of  rates  in  such 
cities.  Thus  in  Illinois  where  the  gas  to  be  furnished  was 
to  be  ''  of  a  quality  at  least  equal  to,  and  rates  favorable  as 
that  furnished  by  "  a  certain  company,  it  was  held  that  the  rate 
of  that  company  at  the  time  of  the  furnishing  of  the  gas  should 
be  taken,  and  not  its  rate  at  the  time  of  the  passage  of  the 
ordinance.  Therefore,  the  rates  fluctuated  with  the  rates  of 
such  company,  and  were  real]^  subject  to  its  control.'"^  And  in 
Massachusetts  where  an  ordinance  provided  that  the  gas  should 
be  furnished  as  cheaply  as  it  was  furnished  in  Boston,  New 
York  and  Baltimore,  it  was  held  that  it  was  not  intended  that 
the  company  should  at  all  times  furnish  it  as  cheaply  as  it  was 
being  furnished  in  those  cities  at  the  time  the  ordinance  was 
passed,  but  that  the  rate  should  vary  with  the  rates  in  those 
cities.^**  Where  a  gas  company  in  accepting  an  ordinance  fix- 
so  Toledo  V.  N.  W.  Ohio  Natural  os  Decatur  Gaslight  and  Coke  Co. 
Gas  Co.,  8  Ohio  S.  and  C.  P.  Dec.  v.  Decatur,  120  111.  67;  11  N.  E. 
277;  6  Ohio  N.  P.  531.  Rep.  406;  affirming  24  111.  App.  544. 
In  this  case  the  petition  for  an  At  the  time  of  the  adoption  of  the 
injunction  was  held  defective,  it  ordinance  the  rate  of  the  company 
only  stating  that  the  council  passed  referred  to  was  over  $.3.25  per  thou- 
an  ordinance  fixing  the  price  at  sand  feet;  but  afterwards  it  re- 
reasonable  rates  which  the  company  duced  its  rate  to  $1.50,  and  it  was 
refused  to  recognize  and  was  pro-  held  that  the  city  was  not  liable  to 
posing  to  furnish  gas  at  a  price  in  pay  any  higher  price  than  the  re- 
excess   of   that   named   in  the   ordi-       duced  rate. 

nance.     Nothing  was  alleged  that  the  99  Worcester      Gaslight      Co.      v. 

company  had  not  agreed  with  the  Worcester,  110  Mass.  353;  Cincin- 
conncil  on  a  schedule,  nor  that  the  nati  v.  Cincinnati  Gaslight  and 
council  had  proposed  one  to  the  com-  Coke  Co.,  53  Ohio  St.  278;  41  N.  E. 
f  any,  nor  that  the  company  had  re-       Rep.  239. 

fused  to  negotiate  with  the  council.  It   must  be   alleged,   in   the   com- 

"■^  Cincinnati    v.    Cincinnati    Gas-       plaint  by  a  water  company  to  have 

light  and  Coke  Co.,  53  Ohio  St.  278;        an   ordinance   fixing  water   rents  to 

41  N.  E.  Rep.  239.  be  paid  by  citizens  declared  void  be- 


GAS    COMPAXY    AXD    COI^SUMEK.  599 

ing  the  rates  to  be  charged  consumers  expressly  reserved  all 
vested  rights  under  its  franchise,  one  of  the  provisions  thereof 
])eing  its  right  to  fix  its  own  prices,  within  reasonable  limits,  for 
gas,  such  reservation  was  held  to  apply  to  all  uses  of  gas  not 
specified  in  the  last  ordinance/**"  Where,  under  a  special  con- 
tract, a  manufacturing  company  was  supplied  natural  gas  for 
fuel  only,  but  used  it  for  illuminating  purposes  also,  it  was 
held  liable  for  the  reasonable  value  of  the  gas  used  for  the  latter 
purpose,  without  regard  to  the  price  paid  for  that  used  for 
fuel/°^  If  an  ordinance  regulating  the  price  of  gas  be  amended 
so  as  to  increase  the  price  to  bo  charged  by  a  particular  gas 
company  only  for  a  certain  time,  such  amendment  does  not 
repeal  the  amended  ordinance,  and  on  the  expiration  of  such 
time  the  prior  ordinance  is  in  force  and  prevails.^"^  if  ihe 
company  sees  fit  to  supply  gas  at  a  lower  rate  than  it  is  entitled 
to  charge  for  it,  or  furnishes  a  gas  of  a  better  quality  for  fuel 
pairiooses  than  it  is  required  to  do,  or  if  the  same  quality  is 
furnished  for  fuel  purposes  that  it  is  required  to  furnish  for 
illuminating  purposes,  when  it  is  under  no  obligation  to  fur- 
cause  in  violation  of  an  agieement  tween  consumers,  a  thing  forbidden 
with  it  that  the  rates  to  be  fixed  by  by  the  general  principles  of  the  law. 
the  municipality  should  not  be  less  loi  Philadelphia  Co.  v.  Park,  138 

than  the  prices  charged  in  towns  of       Pa.  St.  :146;   22  Atl.  Rep.  86. 
the    State    similarly    situated,    that  lo^  Thistlethwaite    v.    State,     149 

there  is  a  substantial  difference  be-       Ind.   319;   49  N.  E.  Rep.   156. 
tween  the  rates  as  fixed  and  those  An  application  for  water,  subject 

obtaining  in  the  towns  to  which  ref-  to  the  rules  and  ordinances  of  the 
erence  is  made;  and  it  is  not  sxifii-  municipality,  constitutes  an  ex- 
cient  to  merely  allege  that  the  re-  press  consent  by  the  applicant  to 
spective  rates  do  not  correspond,  pay  the  rates  charged.  Silkman 
without  showing  wherein  or  to  what  v.  Yonkers  Water  Comrs.,  152  N.  Y. 
extent  there  is  a  difference.  Lead-  327;  46  X.  E.  Rep.  612;  37  L.  R.  A. 
ville  Water  Co.  v.  Leadville.  22  827;  Rieker  v.  Lancaster,  7  Pa. 
Colo.   297;    45   Pac.   Rep.    362.  Super.  Ct.   149;    42   W.   X.   C.   160; 

100  Noblesville  v.  Xoblesville  Gas  Lancaster  Hotel  Co.  v.  Lancaster. 
Co.,  157  Ind.  162;  60  N.  E.  1032.  7  Pa.  Super.  Ct.  159;  42  W.  X.  C. 
The  court  seems  to  have  overlooked  104.  But  this  is  not  the  case  if  the 
the  fact  that  by  such  a  construe-  rates  are  discriminating  or  unreas- 
tion  of  the  two  ordinances  it  adopt-  onable.  Griffin  v.  Golsboro  Water 
ed  a  rule  which  discriminated,  or  Co..  122  X.  C.  206;  30  S.  E.  Rep. 
might    lead    to    discrimination,    be-       319. 


600 


OIL    AND    GAS. 


iiish  it  of  so  high  a  quality  for  fuel  purposes, —  that  does  not 
prevent  it  charging-  the  full  rate,  or  changing  the  supply  for 
fuel  purposes  from  the  higher  to  the  lower  quality/"'*  It  is 
proper  for  a  gas  company  to  provide  that  if  gas  bills  are  not 
paid  within  a  certain  time  after  due, —  as  within  ten  days, — 
a  small  percentage  will  be  added."* 

§540.     Payment  in  advance. 

Where  gas  is  not  furnished  by  meter  measurement,  and  is 
furnished  at  so  much  per  month,  quarter  or  year,  upon  what  is 
known  as  the  "  flat  "  rate,  the  company  may  require  that  it  be 
paid  for  in  advance;  and  a  rule  requiring  payment  in  advance 
for  three  months  is  a  reasonable  one.^°^  On  an  issue  whether 
w^ater  rent  was  payable  in  adv|pice,  the  transactions  of  the  com- 
pany and  the  consumer  may  be  sllo^vu,  to  reveal  their  under- 
standing as  to  the  time  when  the  payments  were  to  be  made.^°'"' 
In  a  case  where  it  is  necessary  to  make  a  tender, —  the  rent  being 


103  People's  Gaslight  and  Coke 
Co.  V.  Hale,   94  111.  App.  406. 

104  Tacoma  Hotel  Co.  v.  Tacoma 
Light  and  Water  Co..  3  Wash.  St. 
316;    28  Pae.   Pvep.   516. 

The  company  cannot  add  a  charge 
of  one  dollar  for  turning  on  the  gas 
where  it  has  been  turned  off  for  fail- 
ure to  pay  a  bill^  if  the  bill  is  paid 
and  a  request  made  that  it  be 
tvirned  on  again.  American  W.  W. 
Co.  V.  State,  46  Neb.  194;  64  N.  W. 
Rep.  711. 

The  assignee  of  a  gas  company's 
rights  to  furnish  the  inhabitants  of 
a  municipality  gas,  is  bound  by 
the  agreement  of  the  assignor  to 
!  furnish  gas  for  the  streets  and  the 
municipal  public  buildings  free  of 
charge.  Freeport  School  Distric^A'. 
Enterprise  Natural  Gas  Co.,  18  Pa. 
Super.   Ct.    73. 

A  company  cannot  increase  the 
charge  for  gas  supplied  so  as  to 
cover  the  amount  of  a  meter  rent, 


where  a  statute  forbids  a  meter 
rent.  Buffalo  v.  Buffalo  Gas  Co., 
(N.  Y.)   80  N.  Y.  Supp.  1093. 

105  Harbison  v.  Knoxville  Water 
Co.    (Tenn.),  53  S.  W.  Rep.  993. 

106  Hieronymus  v.  Bienville  Water 
Supply  Co.,  131  Ala.  447;  31  So. 
Rep.  31. 

In  England  where  a  statute  re- 
quires water  rents  to  be  paid  in 
advance,  no  penalty  is  incurred  for 
a  failure  to  furnish  water  unless 
a  payment  in  advance  is  made  or 
tendered,  even  if  the  company  is  in 
tne  habit  of  supplying  water  with- 
out such  advanced  payment.  Kyffin 
V.  East  London  W.  W.  Co.,  66  Gas. 
Jr.  243;  Thorn  v.  East  London  W. 
W.  Co.,  66  Gas.  Jr.  189;  Sheffield 
W.  W.  Co.  V.  Brooks,  8  Q.  B.  Div. 
632;  51  L.  J.  M.  C.  97;  30  W.  R. 
889 ;  46  J.  P.  548.  See  Houlgate  v. 
Surrey  Consumers'  Gas  Co.,  8  Gas. 
J.   261. 


GAS    COMPANY    AND    CONSUMER.  601 

payable  for  the  quarter  in  advance, —  snch  tender  will  not  be 
rendered  invalid  by  failure  to  tender  a  fee  diarged  for  turning 
on  the  gas,  if  the  company  refuse  to  receive  the  sum  tendered 
solely  upon  non-payment  of  an  illegal  charge.  In  such  a  case 
it  waives  a  tender  of  the  fee."^ 

§541.     Deposits. 

It  is  a  reasonable  regulation  to  require  an  applicant  for  gas 
to  make  a  deposit  of  a  sum  of  money  to  secure  the  payment 
of  rates,  before  gas  shall  be  furnished.  ^''^  But  a  company  can- 
not require  a  particular  person  to  make  a  deposit,  when  no 
regulation  of  a  general  character  has  been  adopted.^"^  The 
sum  of  two  pounds  has  l>een  held  a  reasonable  sum  to  de- 
mand ;  ^^^  and  so  one  hundred  dollars,  where  sixty  dollars  worth 
a  week  was  consumed.^^^  Where  the  applicant  for  gas  paid 
the  amount  demanded  and  immediately  demanded  it  back ;  it 
was  held  that  the  company  was  justified  in  refusing  him  gas.^^' 
So  where  a  consumer  refuses  to  pay  only  so  much  of  his  bill 
as  exceeded  the  deposit,  because  the  company  would  not  pay  him 
interest  upon  it ;  and  upon  payment  of  such  excess  the  company 
demanded  from  him  a  new  deposit, —  he  in  his  contract  agreeing 
to  make  a  deposit, —  it  was  held  that,  on  his  refusal  to  make  it, 
it  was  justified  in  shutting  off  his  gas  supply.^^^  If  the  periodi- 
cal gas  bills  greatly  exceed  the  amount  of  the  deposit,  the  com- 
pany may  demand  that  such  deposit  be  increased ;  as  where  the 
deposit  was  fifteen  dollars  and  the  monthly  gas  bill  forty-five. 
A  request  for  the  payment  of  the  bill  and  an  increase  of  the  de- 
posit at  the  same   time   does   vitiate   the   demand   for   the   in- 

107  Northern  Colorado,  etc..  Co.  v.  lof  Owensboro  Gaslight  Co.  v. 
Richards,  22  Colo.  450;  45  Pac.  Hildebrand.  19  Ky.  Law  Rep.  983; 
Rep.  423.  42  S.  W.  Rep.  351. 

108  Williams  V.  Mutual  Gas  Co.,  no  Samuel  v.  Cardiff  Gas  Co.,  18 
52  Mich.  499;   18  N.  W.  Rep.  236;  Gas.   J.    192. 

50  Am.  Rep.  266;   4  Am.  and  Eng.  m  Williams   v.   Mutual   Gas   Co., 

Corp.    Cas.    66;    Ford    v.    Brooklyn  supra. 

Gaslight   Co.,   3  Hun   621;    Shepard  112  Littlewood    v.    Equitable    Gas 

V.  Gaslight  Co.,  6  Wis.  539;  70  Am.  Co..  8  Gas  J.  541. 

Dec.  479;  Wright  v.  Colchester  Gas  u'' Wright  v.  Colchester  Gas  Co., 

Co.,  30  Gas.  J.  336.  30  Gas  J.  336. 


602  OIL    AND    GAS. 

crease."*  If  a  company  accept  security  in  place  of  a  deposit,  it 
waives  its  right  to  sucli  deposit,  as  where  the  company  took 
the  plaintiff's  demand  note  for  the  amount  of  the  deposit,  and 
immediately  demanded  its  payment,  the  applicant  requesting  a 
short  delay  in  payment,  it  was  held  that  it  was  an  illegal  act 
to  at  once  cut  off  his  supply  of  gas,  for  the  security  still  ex- 
isted."^ It  has  been  held  that  the  question  whether  or  not 
the  deposit  was  a  reasonable  one  was  one  for  the  jury.^^''  The 
consumer  has  the  burden  to  show  that  the  deposit  is  unreason- 
able."' 

§542.     Discrimination  in  use. —  Rates. 

One  rate  cannot  be  adopted  for  those  who  use  natural  gas 
for  light  and  another  for  thoap  who  use  it  for  heat.  The  rate 
for  both  purposes  must  be  the  same.  Thus  where  the  rate  for 
heat  alone  was  fixed  by  the  company  at  twelve  and  a  half  cents 
per  thousand  feet,  and  for  both  heat  and  light  at  twenty  cent& 
the  rule  of  the  company  was  held  to  be  unreasonable  and  invalid. 
It  was  contended  by  the  company  that  it  was  not  shown  that 
natural  gas  for  illuminating  purposes  was  of  less  value  than 
it  was  for  fuel,  or  that  when  used  both  for  light  and  fuel  it 
was  not  reasonably  worth  twenty  cents ;  and  for  this  reason  it 
claimed  that  it  had  made  no  unjust  discrimination  against  the 
complaining  consumer.  The  record  did  not  disclose  how  many 
feet  the  plaintiff  had  used  for  light  and  how  many  for  fuel,  and 
because  of  this  fact  it  was  contended  that  it  could  not  be  claimed 
there  had  been  any  discrimination  as  far  as  he  was  concerned. 

114  Ford     V.     Brooklyn  Gaslight       refusal,    is    a    payment    under    com- 
Cc,  3  Hun  621.  pulsion;    and    if   the    charge    is   ex- 

115  Fowler  v.   Chartered  Gas   Co.,       cessive,  the  excess  may  be  recovered 
17  Gas  J.  908.  back  without  tendering  the  amount 

A   few  cases  hold  Hint  unless  the  really  due.     Westlake  v.   St.  Louis, 

company's  charter  or  a  statute  give  77  Mo.  47. 

it  the  right  to  insist  upon  a  depc^it,  HR  Bennett    v.    Eastchester     Gas- 
the     company     cannot     demand     it.  light  Co.,  40  N.  Y.  App.  Div.   109; 
Spratt   V.    South   Metropolitan    Gas  57  N.  Y.  St.  Rep.  847. 
Co.,  7  Gas  J.  663.     The  payment  of  a           n^  Bennett    v.    Eastchester     Gas- 
water  license  under  a  threat  to  turn  light   Co.,   supra. 
olf   the   water  in  case  of  .continued 


GAS    COMPANY    AXD    COXSUMER.  603 

Tlie  court  bnished  aside  these  contentions  as  without  merit; 
for  the  reason  that  the  classification  of  customers  was  arbitrary 
and  imjust.  ''  Under  this  nile,"  said  the  Court,  "  appellant 
[the  gas  company]  did  not  profess  to  have  any  regard  or  con- 
sideration for  the  amount  consumed  for  light.  If  any  patron, 
using  gas  for  heating  his  dwelling,  also  employed  one  jet  about 
his  dwelling  whereby  a  small  amount  of  natural  gas  was  con- 
sumed each  month  for  light,  he  was  amenable  and  subject  to  the 
rule  in  like  manner  as  the  fuel  consumer  Avould  be  who  used 
many  jets  about  his  premises  for  illuminating  purposes.  The 
amount  consumed  for  light  does  not  seem  to  be  a  feature  of 
any  importance  within  the  meaning  of  the  rule  in  question. 
Such  a  regulation,  under  the  facts  in  this  case  wiien  tested  by 
the  principle  affirmed  and  sustained  by  the  authorities,  must 
certainly  be  held  unreasonable,  arbitrary  and  unjust."  ^^^  So 
a  gas  company  incorporated  to  furnish  heat  and  light  cannot 
prescribe  one  price  for  gas  used  for  heating  and  another  for 
gas  used  for  lighting,  and  that  the  price  for  gas  for  lighting 
should  be  measured  by  what  the  consumer  would  have  to  pay 
for  a  substitute,  if  gas  could  not  be  had.^^'' 

§543.     Classification  of  customers. —  Rates. 

The  Indiana  Supreme  Court  seems  to  consider  that  a  gae 
company  has  the  right  to  classify  its  customers,  and  base  its 
charges  upon  the  classification,   as  indicated   in  the  following 

118  Richmond  Natural   Gas   Co.  v.  agreed  price  of  gas  for  fuel  only. 

Clawson,    155    Ind.    659;    58    N.    E.  ii9  Bailey    v.    Fayette    Fuel    Gas 

Rep.  1049;  51  L.  R.  A.  744.  Co.,   193  Pa.  St.    175;   44  Atl.  Rep. 

The  court  distinguishes  this   case  251 ;  44  \Y.  N.  C.  505. 

from  Philadelphia  Co.  v.  Park,  138  A  statute  forbidding  a  higher  rate 

Pa.    St.    346 ;    22    Atl.   Rep.   86,   by  for  water  for  "  domestic  purposes  " 

saying  that  it  was  a  case  where  die  than   tliat  specified   for    the   use   of 

gas  company  had  agreed  to  furnish  water    for   a    building,    includes   all 

the  defendant  with  gas  for  fuel  only  uses  which  contribute  to  the  health, 

at   a    low   price,    but   the    company  comfort,  and  convenience  of  a  fam- 

having   taken   gas    from    the   mains  ily  in  the  enjoyment  of  their  dwell- 

for  lighting  purposes,  it  was  liable  ing   as   a  home.     Crosbey  v.   Mont- 

to    pay    the    market    value    for    the  gomery,   108  Ala.  498;    18  So.  Rep. 

amount    of    gas    used    in    lighting,  723. 
which    was    much    higher    than    the 


604  OIL    AND    GAS. 

langLiago:  "  Counsel  for  the  appellee  concedes,  and  properly 
so,  we  think,  that  companies  engaged  in  furnishing  gas  and 
water,  etc.,  to  the  publio  may  make  classification  in  respect  to 
their  patrons  or  consumers  and  adopt  reasonable  rules  and 
regulations-  for  the  control  of  such  classes,  but  that  the  classifica- 
tion must  be  reasonable  and  impartial,  and  not  arbitrary  or 
unjust,  of  a  discriminating  character ;  but  that  due  regard  must 
be  had  to  the  rights  of  the  citizens  of  the  town  or  city  depending 
upon  such  companies  for  their  supply  of  water  or  gas,  as  the 
case  may  be,  and  that  all  occupying  similar  or  like  positions 
must  be  treated  impartially."  ^"^  In  the  case  from  which  this 
quotation  is  made,  the  company  had  one  rate  for  the  manufac- 
turer using  its  naturiil  gas,  and  another  for  his  residence  and 
residences  in  general.  But  this  rule  was  not  drawn  in  question, 
and  of  course  not  passed  up<m.  Whether  or  not  such  a  rule  is 
valid  is  not  yet  decided  so  far  as  the  author  knows;  but  it  is 
difficult  to  see  why,  in  accordance  with  the  commercial  practice 
of  the  day,  a  large  consumer  should  not  receive  gas  at  a  lower 
rate  than  a  smaller  one,  all  other  things  being  equal. ^"^ 

§544.     Recovering  back  overcharges. 

A  consumer  who  pays  an  overcharge  or  illegal  bill  does  not 
necessarily  voluntarily  pay  it.  In  a  measure  he  is  under  com- 
pulsion ;  for  if  he  do  not  pay,  his  gas  will  be  cut  off,  and  his 
premises  left  without  means  of  lighting.  The  gas  company 
cannot  claim  successfully  that  the  payment  was  voluntarily 
made,  and  thus  retain  the  money ;  for  it  is  public  duty  it  was 
bound  to  perform  at  a  lower  price.  The  excess,  therefore,  paid 
over  the  amount  of  the  legal  rate  may  be  recovered  back,  under 
the  theory  that  it  was  a  payment  under  compulsion.^""     In  the 

120  Richmond  Natural  Gas  Co.  v.  122  Pingree  v.  Mutual  Gas  Co., 
Clawson,  155  Ind.  659;  58  N.  E.  107  Mich.  156;  65  X.  W.  Rep.  6; 
Rep.  1049;  51  L.  R.  A.  744.  Penn.    Iron    Co.    v.    Lancaster,     17 

121  See  St.  Louis  Brewing  Ass'n  Lane.  Law  Rev.  161  (must  pay  un- 
'•.  St.  Louis  (]\ro.),  37  S.  \Y.  Rep.  der  protest);  Indiana,  etc.,  Co.  v. 
525;  Sheward  v.  Citizens'  Water  Anthony.  26  Ind.  App.  307;  58  N. 
Co..  90  Cal.  635;  27  Pac.  Rep.  439.  E.   Rep.   868. 

See  State  v.  Goswell    (Wis.),  93  N. 
W.  Rep.  542. 


GAS    COMPANY    AND    CONSUMER.  605 

case  just,  cited  first  below  an  ordinance  prescribed  tlie  rate,  and 
a  recovery  back  of  the  excess  was  allowed,  although  such  or- 
dinance did  not  in  terms  confer  a  right  of  action  to  recover  such 
excess.  In  this  case  the  consumer  paid  the  bill  in  ignorance 
of  the  legal  rate.  The  ordinance  provided  that  the  legal  rate 
should  be  the  average  rate  in  five  certain  cities,  and  it  was  held 
that  the  payment  was  not  voluntary,  though  the  consumer  was 
negligent  in  not  ascertaining  such  average  rate.^"^ 

§545.     Collection  of  rents. —  Action. 

A  gas  company  may  provide  that  if  its  bill  for  rent  is  not 
paid  within  so  many  days,  an  additional  amount  will  be  exacted, 
—  as  if  not  within  ten  days,  five  per  cent,  will  be  added ;  but 
a  provision  also  providing  that  if  the  bill  is  not  paid  within 
two  months,  the  attachment  will  be  cut  oif  and  not  renewed 
until  the  rent  due,  including  all  expenses  of  cutting  and  turning 
on,  and  the  rent,  in  case  of  a  water  company,  for  half  a  year  be 
not  paid,  is  void.^^*  The  gas  company  may  maintain  assumpsit 
to  collect  bills  for  gas  furnished  ;^'^  and  if  furnished  to  a  part- 
nership, although  the  premises  are  owned  by  only  one  of  the 
partners,  all  are  liable.^**'  A  surety  for  gas  furnished  is  liable 
with  the  consumer,  but  not  for  a  tenant  succeeding  to  the  person 
for  whom  he  became  responsible.^'^  Where  a  receiver  of  the 
]n"ofits  of  a  partnership  agreed  in  writing,  with  the  consent  of 
the  partners,  to  pay  a  back  bill  then  due  within  six  months, 

123  In  England   it  is  held  that  a  City  Gas,  etc.,  Co.  v.  Gaines,  20  Ky. 

private  consumer  cannot  recover  an  L.  Repr.  1464;  49  S.  W.  Rep.  462. 

overcharge  made  contrary  to  a  stat-  i^-i  Dayton    v.    Qixigley,    29   N.    J. 

ute    providing    that    under    certain  Eq.  77. 

circumstances  the  price  of  gas  sup-  125  London   Gaslight   Co.  v.  Nich- 

plied  a  municipality  by  a  gas  com-  oils,  2  Car.  and  P.  365;  Preston  v. 

pany    should    be    reduced,    and    em-  Hayton  &  Roby  Gas  Co.,  25  Gas  J. 

powering  the   corporation   to- check  889;   Birmingham,  etc.,  Co.  v.  Rat- 

the  annual  audit  of  the  company's  cliffe  L.  R.  6  Ex.  224 ;  Hiej'onymus 

accounts  to   ascertain   if  it  is  com-  v.  Bienville  Water  Supply  Co.,   131 

plying  with  the   statute.     Johnston  Ala.  447;  31  So.  Rep.  31. 

V.   Consumer's  Gas   Co.,   78  Law  T.  126  London  Gaslight   Co.  v.   Nich- 

270;    [1898]   A.  C.  447;  67  L.  J.  P.  oils,  sttpra. 

C.  33.  127  Manhattan     Gaslight     Co.     v. 

An  unlawful   charge  for   a  meter  Ely,   39   Barb.   174. 
may    be    recovered    back.      Capitol 


60G  OIL    AND    GAS. 

and  also  undertook  to  pay  future  bills  until  further  notice.;  it 
was  held  that  he  was  liable  for  the  past  bills,  the  consideration 
being  sufficient  to  enable  the  gas  company  to  maintain  assump- 
sit''' 

^546.     Collection  of  rents  by  distress. 

In  some  instances  early  statutes  allowed  gas  companies  to 
collect  rents  by  distress.  But  distress  does  not  lie  when  that 
rule  prevails,  for  a  gas  stove  let  for  hire  to  the  consumer  by 
the  company.^"^  And  wiiere  a  gas  company  was  authorized  by 
statutes  to  levy  all  sums  for  gas  by  distress,  after  one  of  its 
customers  had  filed  a  petition  in  bankruptcy,  it  was  held  that 
the  company  could  not  then  collect  the  gas  by  distress.^"'*  This 
case  was  distineiiished  from  an  earlier  case,  in  which  a  statute 
authorized  a  company  to  collect  rent  and  charge  for  gas  "  by 
the  same  means  as  landlords  are  by  law  empowered  to  recover 
rent  in  a r rear,"  where  the  court  held  that  the  rent  or  charges 
in  arrear  before  the  petition  in  bankruptcy  was  filed  could  be 
collected  by  distress  of  the  goods  of  the  bankrupt  in  the  trustee's 
hands. *^^°  Subsequently,  however,  under  a  similar  statute,  the 
right  to  relief  by  distress  was  denied.^^^ 

128  Hiberian  Gaslight  Co.  v.  Par-  pany  did  not  light  the  lanterns  to 

ry,   L.   R.   4   Ir.   453.  the  satisfaction  of  the  defendant  or 

If    a    lessor    agree    to    pay    "  all  its    surveyor   and    did    not   perform 

water    rates    imposed     or    assessed  the  other  covenants  of  the  contract, 

upon  the  premises  or  on  the  lessor  —  the  performance  of  all  the  several 

or'  lessees    in    respect    thereof,"    he  stipulations  of  the  gas  company  not 

is  not  bound  to  pay  for  water  sup-  being  a   condition  precedent  to  the 

plied  to  the  lessees  for  trade  pur-  right  to  receive  the  money.     London 

poses.     In  re  Floyd    [1897],    1    Ch.  Gaslight  Co.  v.  Vestry  of  Chelsea,  8 

633;    66    L.   J.    Ch.    350;    76   L.   T.  C.  B.   (N.  S.)    215;  9  Gas  J.  292. 

251;  45  W.  R.  435.  129  Gaslight  and  Coke  Co.  v.  Har- 

Where  a  gas  company  covenanted  dy,  17  Q.  B.  Div.  619. 

to  supply  gaslight  for  each  lantern  iso  Ex  parte  Hill,   6   Ch.  Div.  63. 

of  a  parish,   to   the  satisfaction   of  *i3o£fa?    parte    Birmingham,    etc., 

the  defendant  or  its  surveyorf  in  a  Co.,  L.  R.   11   Eq.   615    (and  see  ex 

certain    manner    and    form    set    out  parte  Birmingham,   etc.,   Co.,  L.   R. 

in  the  contract,  it  was  held  that  the  11  Eq.  204). 

parish   could  not  refuse  to  pay  for  i3i  Ex   parte   Harrison,    13   Q.   B. 

the  gas  on  the  ground  that  the  com-  Div.    753. 


GAS    eOMPA^^Y    AND    CONSUMER. 


607 


§547.     Shutting  off  gas  for  failure  to  pay. 

If  a  consumer  fails  or  refuses  to  comply  with  the  rules  or 
regulations  of  a  gas  company,  such  company,  after  bringing  his 
attention  to  the  rule  violated,  may  shut  off  his  supply  of  gas 
if  he  continues  to  violate  it  after  notice  given.^^"  Thus  a  rule 
that  a  consumer's  supply  of  gas  may  be  shut  off  if  he  becomes 
in  arrears  and  fails  to  pay  upon  demand  made,  is  valid,  and  in 
such  an  instance,  after  notice  given,  the  company  may  shut  off 
his  gas  supply.^^^  And  if  a  consumer  has  practically  aban- 
doned the  use  of  gas,  by  adopting  other  methods  of  lighting,  the 
company  may  cut  off  his  supply  of  gas.^^*  But  a  company 
cannot  shut  off  a  tenant's  or  landowner's  gas  because  a  former 
occupant  or  owner  of  the  building  has  failed  or  refused  to  pay 
proper  gas  bills. ^^^  This  rule,  however,  may  be  changed  by  a 
statute,  or  by  a  contract,  or  by  an  ordinance  where  the  munici- 
pality furnishes  gas  to  private  consumers.     Thus  it  was  held 


i32Shiras  v.  Ewing.  48  Kan.  170; 
29  Pac.  Rep.  320;  Commonwealth  v. 
Philadelphia,  132  Pa.  St.  288;  19 
Atl.  Rep.  136  (as  a  rule  requiring 
bills  to  be  paid  within  ten  days  af- 
ter presented,  or  the  gas  would  be 
shut  off ) . 

i33Tlie  right  to  shut  off  the  gas 
exists  in  such  an  instance  without 
such  a  rule.  People  v.  Manhattan 
Gaslight  Co.,  45  Barb.  13G;  30  How 
Pr.  87;  1  Abb.  Pi-.  (X.  S.)  404; 
Smith  V.  Scranton  Gas  and  Water 
Co.,  .5  Lack  Leg.  X.  235;  Baltimore 
Gaslight  Co.  v.  Colliday.  25  Md. 
1;  Appeal  of  Brum  (Pa.).  12  Atl. 
Rep.  855;  Morey  v.  Metropolitan 
Gaslight  Co.,  38  X.  Y.  Super.  185; 
Bellaire  Goblet  Co.  v.  Findlay.  3 
Ohio  C.  Dec.  205;  5  Ohio  Clr.  Ct. 
418;  McDaniel  v.  Springfield  W.  W. 
Co..  48  Mo.  App.  273;  Mackin  v. 
Portland  Gas  Co.,  38  Ore.  120;  61 
Pac.  Rep.  134:  62  Pac.  Rep.  20;  49 
L.  R.  A.  596:  Tacoma  Hotel  Co.  v. 
Tacoma  Light  and  Water  Co..  3 
Wash.    316;    28    Pac.   Rep.    516;    14 


L.  R.  A.  669 ;  Pearson  v.  Phcenix 
Gas  Co.,  12  Gas  J.  69;  Jenkins  v. 
Columbia,  etc.,  Co.,  13  Wash.  502; 
43  Pac.  Rep.  328. 

134  Adams  Express  Co.  v.  Cincin- 
nati Gaslight  Co.,  10  Ohio  Dec.  389; 
21  Wkly.  Law  Bull.  18.  See  Smith 
V.  Capital  Gas  Co.,  132  Cal.  209; 
64  Pac.  Rep.  258. 

135  Sheffield  W.  W.  Co.  v.  Wilkin- 
son, L.  R.  4  C.  P.  Div.  410;  People 
V.  Manhattan  Gaslight  Co.,  supra; 
Jlerrimac  River  Savings  Bank  v. 
Lowell.  152  Mass.  556;  26  X.  E. 
Rep.  97 ;  Xew  Orleans  Gaslight  Co. 
V.  Paulding.  12  Rob.  (La.)  378; 
Dayton  v.  Quigley.  37  X.  J.  Eq.  77; 
Gaslight  and  Coke  Co.  v.  Mead,  45 
L.  J.  M.  C.  71;  Brass  v.  Rathbone, 
8  App.  Div.  X.  Y.  78;  40  X.  Y. 
Supp.  466:  affirmed  153  X.  Y.  435; 
47  X.  E.  Rep.  905;  Turner  v.  Re- 
vere Water  Co..  171  Mass.  329;  50 
X.  E.  Rep.  634 ;  Morey  v.  Metropol- 
itan Gas  Co.,  6  Jones  &  S.  (X.  Y.) 
185. 


608  OIL    AND    GAS. 

that  the  city  of  Philadelphia,  when  it  furnished  gas,  could 
adopt  an  ordinance  and  require  payment  of  all  arrear  gas  bills  of 
former  tenants  of  the  premises  before  supplying  present  ten- 
ants/"*'' A  statute  may  make  the  charge  for  gas  supplied  a 
lien  on  the  land,  in  which  event  the  purchaser  of  the  land  will 
be  bound  to  pay  up  all  arrearage  bills,  even  though  such  pur- 
chaser obtain  title  through  a  sheriff's  sale/^^  '  In  such  an  in- 
stance a  statute  is  necessary  to  make  the  rent  a  lien,"^  unless 
a  contract  the  equivalent  of  a  mortgage  be  given/^^  But  where 
a  statute  authorized  a  company  "  to  stop  the  gas  from  entering 
the  premises,  service  pipes  or  lamps  of  any  "  person  refusing 
to  pay  for  gas  supplied,  the  oonipany  was  held  empowered  to 
cut  off  the  gas  supplied  to  one  set.  of  premises  of  a  consumer 
for  default  made  by  him  in  respect,  to  another  set  of  pi-emises; 
it  being  deemed  that  the  lia|>ility  attached  to  the  consumer  and 
not  to  the  premises.""  A  receiver  appointed  by  court,  in  behalf 
of  the  bondholders  and  eariying  on  the  business,  is  not  entitled 
to  gas,  under  a  statute  authorizing  a  company  to  turn  off  the 
gas  if  the  owner  of  the  premises  does  not  pay,  without  paying 
the  arrears  of  the  company  for  wdiich  he  was  appointed  re- 
ceiver; but  even  here  there  may  be  exceptions. ^*^  But  a  con- 
tract to  supply  gas,  and  permitting  the  company  to  shut  off 
the  supply  if  bills  be  not  paid  as  to  any  premises  of  the  con- 
sumer, cannot  be  given  a  retroactive  effect  by  allowing  the  coni- 
pany  to  shut  off  gas  fro'm  the  p'remises  because  of  delinquent 
gas  bills  incurred  for  gas  furnished  at  a  house  from  which  the 
consumer  had  moved  before  entering  into  such  special  con- 
tract.^*'    Nor  can  the  company  shut  off  the  gas  from  all  the 

136  Commonwealth  v.  Philadel-  Cas.  589;  81  Law  T.  (N.  S.)  274; 
phia.  132  Pa.  St.  288;  19  Atl.  Rep.  Montreal  Gas  Co.  v.  Cadieux,  11 
136;   4G  Lef^.  Int.  210.  Can.  Q.   B.  93. 

137  Appeal  of  Brumm  (Pa.),  12  i-*!  Patterson  v.  Gaslight  and 
Atl.  Rep.  855.  Coke  Co.   [1896],  2  Ch.  476;   65  L. 

138  Turner  v.  Revere  Water  Co.,  J.  Ch.  (N.  S.)  709;  74  L.  T.  Rep. 
171  :\Tass.  329;   50  N.  E.  Rep.  634.  640;  In  re  Marriage,  etc.   [1896],  2 

13!)  St.    Joseph    Hydraulic    Cfo.    v.  Ch.  663;  Gosling  v.  Gaskell,  [1897] 

Wilson,  133  Ind.  465;  33  N.  E.  Rep.  A.  C.  575. 

113.  142  Lloyd  V.  Washington  Gaslight 

140  Montreal  Gas   Co.  v.  Cadienx,  Co.,   1  Mackey  331. 
68    L.    J.    P.    C.    126;     [1889]    App. 


GAS    COMPANY    AXD    COXSUMEK.  609 

consumers  of  several  houses  where  he  holds  a  separate  contract 
for  the  supplying  of  each  house.^*^  But  where  a  consumer 
failed  to  pay  a  bill  for  the  house  in  which  he  resided,  and  he 
then  moved  into  another  house  where  the  company  supplied 
him  with  gas  for  a  while  and  then  discontinued  it,  it  was  held 
that  he  could  not  compel  it  to  continue  to  furnish  him  with  gas 
until  he  had  paid  his  old  bills. ^**  A  company,  however,  eamiot 
enforce  the  payment  of  disputed  bills  by  shutting  off  the  supply 
of  gas ;  and  if  it  attempted  to  do  so,  it  may  be  enjoined  ;^*''  espe- 
cially after  it  has  received  payment  for  a  subsequent  and  undis- 
puted installment.""  A  gas  company  is  not  justified  in  shut- 
ting off  gas  furnished  free  to  a  person  who  is  wasteful  in  its 
use;  but  the  court  will  regulate  the  supply.  As  where  a  con- 
sumer furnished  free  gas  used  300,000  cubic  feet  in  a  year, 
while  the  largest  consumer  similarly  situated  used  not  over 
64,000  during  the  same  year,  the  court  limited  the  supply  to 
150,000  cubic  feet.^*"  And  in  an  instance  where  a  munici- 
pality was  to  be  furnished  gas  free  for  all  municipal  purposes 
for  the  privilege  of  laying  gas  pipes  in  its  streets,  the  court 
refused  to  enjoin  an  excessive  and  wasteful  use,  remitting  the 
company  to  its  action  at  law."^  A  promise  by  a  new  tenant  to 
pay  all  gas  bills  of  the  former  tenant  unpaid  is  without  consid  ' 
eration,  even  thongh  the  gas  company  refused  to  furnish  him 
gas  without  he  agreed  to  its  demand;  and,  therefore,  the  com- 
pany cannot  cut  off  his  supply  for  a  neglect  to  keep  his  contract 
in  full.^*''     A  contract  to   supply  natural  gas  so   long  as  the 

143  Baltimore  C4aslight  Co.  v.  Col-  tra,  Penn.  Iron  Co.  v.  Lancaster,  17 
liday,  25  Md.  1.  Lane.  Law  Rev.   161. 

144  Mackin    v.    Portland    Natural  i46  Wood  v.  Auburn,  87  Me.  287 ; 
Gas  Co..  38  Ore.  120;  61  Pac.  Rep.  .32  Atl.  Rep.  906. 

1.34;    49    L.    R.    A.    .596     (rehearing  i47  Graves   v.    Key   City   Gas    Co.. 

denied,  62  Pac.  Rep.  20).  93  Iowa  470;   61  X.   W.  Rep.   937; 

145  Bienville    Water,    etc..    Co.    v.  Graves    v.    Key    City    Gas    Co.,    83 
Mobile,   112  Ala.   260;    20   So.  Rep.  Iowa  714;  50  N.  W.  Rep.  283. 
742;  33  L.  R.  A.  59;  Penny  v.  Ros-  i4s  Saltsburg    Gas    Co.    v.    Salts- 
endale,    etc.,    Co.,    14    Gas    J.    927;  burg,  138  Pa.  St.  250;   20  Atl.  Rep. 
Sickles  V.  Manhattan  Gaslight  Co.,  844;   10  L.  R.  A.  193. 

66   How.   Pr.   314    (as   where   there  i49  New   Orleans    Gaslight    Co.   v. 

was   a  dispiite  over  the  correctness       Paulding,  12  Rob.    (La.)    378. 
of   the   meter   measurement).      Con- 


610  OIL    AND    GAS. 

supply  does  not  fail,  will  authorize  the  company  to  cut  off  the 
supply  when  that  contingency  happens ;  and  it  cannot  be  en- 
joined from  doing  so.^^°  An  agreement  that  if  the  gas  rent  be 
not  paid,  the  company  may  shut  off  the  supply  and  take  posses- 
sion of  the  machinery  of  the  mill  furnished  and  the  fixtures 
until  payment  is  made  gives  the  company  no  lien  on  the  land, 
but  only  a  chattel  mortgage  on  the  machinery  and  fixtures.^"^ 
A  statute  giving  a  municipality  a  lien  on  the  premises  does  not 
prevent  it  passing  an  ordinance  providing  that  the  gas  may  be 
cut  off  if  past  bills  are  not  paid/^"  And  it  may  be  remarked  in 
this  connection  that  a  municipality  has  the  same  power  to 
enforce  payment  of  arrearages  as  a  private  gas  company  has/^^ 
But  the  city  cannot  cut  off  a  consumer's  water  supply  for  a 
failure  to  comply  with  the  ordinance  of  the  board  of  health 
respecting  plumbing,  in  th^  absence  of  any  regulation  authoriz- 
ing such  action. ^^*  The  consumer  cannot  prevent  the  company 
cutting  off  the  gas  on  the  ground  that  he  is  solvent  and  able  to 
pay  the  bills ;  ^^^  although  insolvency  is  an  additional  justifica- 
tion in  the  company  cutting  off  the  gas  supply/^'  A  landlord 
cannot  prevent  the  company  shutting  off  the  gas  from  his  tenant 
who  is  in  arrears,  or  who  has  disobeyed  the  rules  of  the  com- 
pany with  respect  to  w^aste ;  for  the  injury  is  to  the  tenant ;  and 
he  being  in  default,  he  could  not  treat  the  action  of  the  company 

150  Thompson    Glass    Co.    v.    Fay-  152  Altoona  v.  Shellenberger,  6  Pa. 
ette   Fuel  Co..   137  Pa.  St.  317;   21       Dist.   Rep.   544. 

Atl.  Pvep.   93;   Black  Lick  v.   Salts-  isa  Tacoma   Hotel    Co.   v.   Tacoma 

burg,  139  Pa.  St.  448;  21  Atl.  Rep.  Light  and  Water  Co.,  3   Wash.   St. 

432.  316;    28    Pac.    Rep.    516;     Bellaire 

If    gas    be    illegally    cut    off.    the  Goblet  Co.  v.  Findlay,  3  Ohio  C.  D. 

company  cannot  make  a  charge  for  205;    5    Ohio    Cir.    Ct.    418;    Penn. 

turning   it   on   again.      Nor,   as   has  Iron  Co.  v.  Lancaster,   17   Lane.   L. 

been  held,  if  properly  cut  off.     Am-  Rev.  101. 

erican  W.  W.  Co.  v.  State,  46  Neb.  is* -Johnson   v.    Belmar.    58   N.   J. 

194;    64  N.  W.  Rep.   711.  Eq.  354;  44  Atl.  Rep.  166. 

A    trustee    in   bankruptcy   is   not  iss  Bellaire  Goblet  Co.  v.  Findlay. 

liable  for  arrears  of  gas  bills,  where  3  Ohio  C.  D.  205 ;    5  Ohio  Cir.   Ct. 

he  continues  to  occupy  the  premises.  418. 

In  re  Flack  [19001.  2  Q.  B.  32.  i^t  People  v.  Manhattan  Gaslight 

151  St.    Joseph    Hydraulic    Co.    v.  Co.,   45  Barb.   136. 
Wilson.  133  Ind.  405;  33  N.  E.  Rep. 

113. 


GAS    COMPANY    AND    CONSUMER.  611 

as  an  eviction  or  as  a  reason  for  vacating  the  premises. ^^^ 
Where  the  plaintiff  removed  from  the  building  the  day  the 
agent  of  the  gas  company  took  the  statement  of  his  meter,  but 
he  did  not  notify  the  company  of  his  removal,  and  five  days 
thereafter  his  wife  notified  persons  taking  the  meter  statement 
to  cut  off  the  gas  and  take  out  the  meter,  and  the  wife  testified 
that  no  gas  was  burned  after  this  notice  was  given,  it  was  held 
that  the  question  whether  the  company  was  justified  in  refusing 
the  plaintiff  a  supply  of  gas  at  his  newly  acquired  residence 
because  of  his  indebtedness  for  gas  furnished  between  the  time 
the  employe  took  out  the  meter  and  the  time  the  plaintiff  noti- 
fied the  company  of  his  removal  was  a  question  for  the  jury,"'' 
An  agreement  between  the  company  and  a  consumer,  separate 
and  distinct  from  the  contract  for  a  water  supply,  providing 
that  the  rent  shall  be  p'aid  in  advance,  the  company's  recovery 
by  suit  of  an  installment  for  a  particular  period  will  not  prevent 
it  from  subsequently  cutting  off  the  supply  of  water,  during 
such  period,  for  non-payment  of  the  rent,  the  judginent  being 
unsatisfied.^*'^  The  conclusion  of  the  gas  company  that  a  con- 
sumer is  in  arrears  does  not  establish  its  right  to  cut  off  the  gas 
for  owners ;  but  the  fact  of  arrears  is  a  question  of  fact,  to  be 
determined  from  the  evidence.  ^'"'^ 


158  Brass  v.  Rathbone,  153  N.  Y.  and  the  bills  thereafter  falling  due, 
435;  47  N.  E.  Rep.  905,  affimning  no  demand  being  made  on  the  wife 
40  N.  Y.  Supp.  466;  8  App.  Div.  78.  but  on  the  husb-nd,  who  failed  to 
In  this  case  it  was  also  held  that  pay,  it  was  held  that  the  wife  could 
the  company  had  not  lost  its  right  not  enjoin  the  company  from  turn- 
to  cut  off  the  supply  because  other  ing  off  the  water.  Smith  v.  Scran- 
consumers  had  violated  the  statute  ton  Gas  and  Water  Co.,  5  Lack. 
in  the  same  particular.  Leg.   N.   235. 

Where  the  rules  of  the  company  i^o  Bennett  v.  Westchester  Gas- 
required  the  owner  or  his  agent  to  light  Co.,  40  App.  Div.  169;  57  N. 
make    the    application    in    his    own  Y.  Supp.  847. 

handwriting,  and  if  made  by  the  i^i  Hiei'onymus  v.  Bienville  Wa- 
tenant  it  must  be  made  with  the  ter  Supply  Co..  131  Ala.  447;  31 
written  consent  of  such  owner  or  So.  Rep.  31.  See  Montreal  Gas  Co. 
agent,  and  the  owner  made  the  v.  Cadieux.  etc.,  11  Can.  Q.  B.  93. 
proper  application,  and  after  he  had  i62Morey  v.  Metropolitan  Gas- 
received  water  awhile,  he  transferred  light  Co.,  6  Jones  &  S.  (N.  Y. )  185. 
the  premises  to  his  wife,  of  which  A  water  company  may  shut  off 
the    company    had    no    knowledge;  the  supply  of  a  city  in  arrears,  even 


612  OIL    AND    GAS. 

g548.     Injunction  to  prevent  cutting  off  gas  supply. —  Rates. 

x\n  injunction  lies  to  prevent  a  gas  company  cutting  off 
the  supply  of  gas  on  the  ground  that  a  consumer  will  not  pay 
an  illegal  rate,  or  a  disputed  bill."^  Wliere  a  gas  company 
entered  into  an  agreement  to  supply  natural  gas  so  long  as  the 
gas  was  obtainable,  it  Avas  held  that  an  injunction  lay  to 
prevent  its  being  cut  off,  where  the  result  would  be  that  the 
plaintiff  would  not  be  able  to  run  its  electric  light  company 
and  keep  its  contracts  to  supply  light  with  its  customers.^*"* 
And  where,  under  a  similar  contract,  the  gas  had  been  cut  off, 
a  preliminary  mandatory  injunction  to  restore  it  was  gi'anted.^"* 
Under  such  a  contract,  if  the  supply  fail,  the  company  may 
discontinue  its  efforts  to  furnish  a  supply.^^*'  A  preliminary 
injunction  restricting  the  shutting  off  of  gas  contracted  to  be 
furnished  will  be  permittea  to  stand  until  final  hearing,  where 
no  material  injury  can  arise  from  preserving  the  status  quo.^^^ 
And  although  the  right  to  gas  rests  upon  a  special  contract  be- 
tween the  consumer  and  the  company,  yet  an  injunction  will 
be  granted  to  compel  the  company  to  continue  the  supply  of 
gas  pursuant  to  such  contract's  terms, ^"'^  especially  where  the 

though    it   leave   such    city   without  Smith  v.  London  Gas  Co.,  7  Grant 

fire    2^1'otection ;    and    an    injunction  (U.   C.)    112. 

will    not   lie   to    prevent    it.      Penn.  i64  Xenia     Real     Estate     Co.     v. 

Iron  Co.  V.  Lancaster.  17  Lane.  Law  Macy.   147  Ind.  568;  47  N.  E.  Rep. 

Rev.  161.  147. 

163  Cromwell  v.   Stephens.  2  Daly  iss  Whitman  v.  Fayette  Fuel  Gas 

15;   Bienville  Water   Supply  Co.  v.  Co.,   139  Pa.   St.  492;   20  Atl.  Rep. 

Mobile,   112  Ala.   260;    20   So.   Rep.  1062. 

742;  33  L.  R.  A.  59;  Penn.  Iron  igg  Blacklick  v.  Saltsburg.  139 
Co.  V.  Lancaster,  17  Lane.  Law  Pa.  St.  448;  21  Atl.  Rep.  432. 
Rev.  161;  Levy  v.  Water  Works  i67  Corbet  v.  Oil  City  Fuel  Sup- 
Co.,  38  La.  Ann.  25;  State  v.  Le\-y,  ply  Co.,  5  Pa.  Super.  Ct.  19;  40  W. 
36  La.  Ann.  941;  Wilkes-Barre  Gas  N.  C.  480.  See  Des  Moines  W.  W. 
Co.  v.  Turner,  7  Kulp  399;  Sickles  Co.  v.  Des  Moines,  95  Iowa  348; 
v.  Manhattan  Gaslight  Co..  64  How  64  N.  W.  Rep.  269;  United  States, 
Pr.  33;  66  How  Pr.  304.  314;  etc.,  Co.  v.  Metropolitan  Club.  6 
Graves  v.  Key  City  Gas  <?o..  83  App.  D.  C.  536. 
Iowa  714;  50  N.  W.  Rep.  283;  Se-  iss  Corbet  v.  Oil  City  Fuel  Co., 
wickley  v.  Ohio  Valley  Gas  Co.,  154  supra :  Graves  v.  Key  City  Gas  Co., 
Pa.    St.    539;     25    Atl.    Rep.    868;  83   Iowa  714;   .50  N.  W.  Rep.   283; 

93  Iowa  470;   61  N.  W.  Rep.  937. 


GAS    COMPANY    AND    CONSUMER.  613 

consumer  would  suffer  great  damages,  or  not  be  able  to  carry 
out  his  contracts  with  his  customers.^"" 

§549.     Consumer's  right  to  discontinue  use  of  gas. 

The  general  rule  is  that  a  customer  within  a  municipality 
is  required  to  pay  for  only  as  much  gas  as  he  consumes  or  as 
passes  through  his  meter ;  and  that  he  may  discontinue  the 
supply  at  any  time.^^''.  Usually  ordinances  or  statutes  extend 
to  such  consumer  the  right  to  discontinue  the  gas  at  any  time, 
even  though  he  has  paid  for  it  in  advance.  But  such  ordi- 
nances or  statutes,  as  an  almost  universal  rule,  do  not  prohibit 
a  consumer  entering  into  a  contract  with  a  company  for  a  supply 
of  gas  for  a  specified  period  of  time,  and  to  bind  himself  to  take 
the  gas  for  that  period  of  time  and  pay  for  it.^"^  This  is 
particularly  true  of  municipalities  which  usually  do  and  are 
allowed  to  make  special  contracts,  varying  in  price  from  that  of 
the  private  consumer.  Wliere  such  contracts  are  entered  into 
they  cannot  be  rescinded,  if  they  are  otherwise  valid.  But,  of 
course,  a  contract  to  pay  more  than  the  ordinance  or  statute  rate 
would  not  be  valid,  unless  the  consumer  was  one  the  company 
was  under  no  legal  obligation  to  furnish  gas.  If  a  company 
does  not  keep  its  special  contract  by  failing  to  furnish  a  supply 
of  gas,  the  consumer  may  at  once  serve  notice  upon  it  that  he 
will  no  longer  take  the  gas,  and  he  will  not  therefore  be  bound 
to  pay  for  gas,  even  though  it  be  tendered  and  the  contract  pro- 
vides that  it  should  continue  until  either  party  should  give  the 
other  thirty  or  other  days'  notice  of  their  desire  for  a  discontinu- 
ance.^'"    Such  a  contract  cannot  be  construed  as  running  from 

169  Xenia      Real     Estate     Co.     v.  one    of   the    apartments.     Hersey  v. 

Macy,  147  Incl.  568;   47  N.  E.  Rep.  White,   9  T.   L.  R.   335. 

147.  1^0  Nebraska     City     v.     Nebraska 

Where  a  larger  mansion  was   di-  City,  etc.,  Co.,  9  Neb.  339;  2  N.  W. 

vided  into  separate  apartments,  and  Rep.  870. 

the   mansion   was    snpplied   through  i^i  Inipeiial  Gas  Co.  v.  Chauntler, 

a   large  meter,   and  each  apartment  2  Gas  J.  362. 

supplied    with    a     small    subsidiary  i"2  Hieronymus    v.    Bienville    Wa- 

meter,    placed    and    maintained    by  ter  Supply  Co.,  131  Ala.  447;  31  So. 

the     landlord,     an     injunction     was  Rep.  31. 
ganted  to   prevent  him   cutting   off 


614  OIL    AND    C4AS. 

year  to  year,  after  the  iirst  year,  or  as  committing  the  company 
to  snpply  gas  during  the  whole  of  a  subsequent  year  merely  by 
failing  to  act  on  the  consumer's  default  at  the  commencemient 
of  that  year/'"  If  a  customer  under  a  special  contract  refuses 
to  take  the  gas  provided  for  in  the  contract,  the  company  may 
recover  damages  for  breach  of  the  contract,  but  it  can  recover 
only  where  the  agreement  is  to  take  gas  for  a  definite  time,  and 
then  only  such  damages  as  it  has  sustained,  and  not  the  full  con- 
tract p'rice.^'*  A  failure  to  use  gas  while  waiting  for  a  tenant, 
will  not  entitle  the  company  to  discontinue  it  and  recover 
liquidated  damages  under  a  clause  in  the  contract  that  if  the 
consumer  discontinues  the  gas  because  the  consumer  is  in  arrears 
or  fails  to  comply  with  the  rules  of  the  company,  or  is  through 
the  "  fault "  of  the  consumer  prevented  from  supplying  the  gas 
according  to  the  provisionsrof  the  contract,  a  specified  amount 
shall  "  forthwith  become  due  and  payable  "  to  the  company  as 
stipulated  damages/'^  Where  the  agreement  was  that  the  con- 
sumer should  declare  an  average  minimum  daily  of  the  amount 
of  gas  which  it  would  take  annually,  and  would  pay  for  it, 
though  it  took  less,  and  that  all  gas  it  used  in  any  month  should 
be  paid  for  monthly,  it  was  held  that  the  agreement  required 
payment  only  at  the  end  of  the  year  for  the  part  of  the  minimuin 
amount  not  taken/'^°  An  agreement  provided  that  a  certain 
company  should  sink  a  gas  well  and  supply  certain  persons  with 
gas  and  all  others  who  might  desire  it,  and  that  it  was  to  become 
binding  as  soon  as  twenty  persons  agi'eed  to  become  consumers 
of  gas ;  it  was  held  that  the  contract  became  binding  as  soon  as 
twenty  prospective  consumers  had  signed  it,  and  that  no  one  of 
the  subscribers  could  withdraw  his  name  from  the  agreement 
without  the  consent  of  all  the  twenty  subscribers  and  of  the  per- 
son Avho  was  to  furnish  the  ffas/'^     Where  the  owner  of  a  well 


^■73  Hieronynnis    v.    BienvilU'    Wa-  v.   Breneman,   46   N.   Y.    8upp.   916; 

ter  Supply  Co..  supra.             >.  21  N.  Y.  Misc.  41. 

1T4  Qvieen  City,  etc.,  Co.  v.  Gibson  i"''>  Conomangh  Gas  Co.  v.  Jack- 
House  Co.,  4  Oliio  N.  P.  119;  6  son  Farm  Gas  Co.,  186  Pa.  St.  443; 
Ohio  Dec.   148.  40  Atl.  Rep.    1000. 

175  United  Electric  Light,  etc.,  Co.  itt  Current     v.     Fulton,     10     Ind. 


App.  617;   38  K  E.  Rep.  419. 


GAS    COMPA^'Y    AXD    COXSUMEK.  615 

that  was  being  drilled  agreed  with  a  gas  company  to  i>ay  for  gas 
it  should  furnish  a  well-driller  to  run  his  drilling  apparatus,  and 
such  owner  had  a  contract  with  the  well-driller  to"  furnish  him 
all  the  gas  necessary  to  run  such  drilling  apparatus,  and  such 
well-driller  knew  the  gas  was  coming  through  pipes  from  the  gas 
company ;  it  was  held  that  he  was  liable  to  pay  for  the  gas  he 
consumed,  although  he  had  never  agreed  to  pay  for  it/^*  The 
consumer  cannot  cut  off  the  supply  of  gas  at  the  stop  cock  located 
in  the  street  or  sidewalk  until  after  reasonable  notice  given  to 
the  company  to  shut  it  off,  followed  by  neglect  to  do  so ;  and  if  a 
rival  company  undertake  to  cut  it  off,  even  though  the  consumer 
may  desire  to  make  a  change  to  it,  an  injunction  will  be  grant- 
ed to  prevent  it  interfering  with  the  stop  cocks  and  service 
pij>es,  until  after  reasonable  notice  to  the  old  company  be  given, 
and  a  failure  on  its  part  to  cut  off  the  connection.^^®  A  con- 
sumer who  desires  to  discontinue  the  use  of  gas  and  escape  lia- 
bility for  it,  where  it  is  furnished  by  the  month  or  year,  or  the 
like,  should  notify  the  gas  company,  in  order  that  they  may  shut 
off  his  sup'ply,^^"  but,  of  course,  if  he  pays  only  for  the  amount 
registered  bv  the  meter,  there  is  little  reason  to  ffive  such  a 
notice,  unless  he  desires  it  cut  off  from  his  premises.  Arid  if 
he  is  bound  to  take  the  gas,  whether  he  use  it  or  not,  the  gas 
company  is  not  entitled  to  an  injunction  to  compel  him  to  use  it, 
its  action  at  law  for  damages  giving  sufficient  compensation/^^ 

§550.     Ownership  of  supply  pipe. 

When  a  supply  pipe  - —  a  pipe  running  from  the  company's 
gas  mains  in  the  street  to  the  meter  in  the  house  —  is  put  down 
by  the  gas  company,  as  often  happens,  it  belongs  to  the  owner  of 
the  real  estate,  and  the  company  may  not  remove  it  upon  the  con- 
ies chamberlain  V.  Summit  Gas  N.  E.  Rep.  545;  reversing  2  Ohio 
Co..    3  Penn.    (Pa.)    261.  Cir.    Ct.    Pvep.   286. 

179  Pennsylvania  Gas  Co.  v.  War-  If  a    consumer   owns   two  sets   or 

ren,  etc.,  Co.,  3  Pa.  Dist.  Rep.  67.  lines   of  pipes   and    two   meters,    lie 

ISO  Pennsylvania  Gas  Co.  v.  War-      may    discontinue    one    and   use    the 

ner,  etc.,  Co..  3  Pa.  Dist,  Rep.  67.  other.     He  may  discontinue  the  use 

181  Steinau  v.  Cincinnati  Gaslight      of    illuminating    gas    entirely,    and 

and  Coke  Co.,   48  Ohio  St.  324;   27      use  fuel  gas.     State  v.  New  Orleans, 

etc.,  Co.    (La.),  32  So.  Rep.    179. 


616 


OIL    AI^D    GAS. 


sumer  or  owner  of  the  premises  ceasing  to  be  a  customer ;  and 
this  was  hekl  true  even  when  the  company  had  a  steady  rnle  in 
force  when  it  put  down  the  pipe  that  "  the  connecting  pipes  and 
works  from  the  street  mains  to  the  consumer's  premises  shall  at 
all  times  be  under  the  control  and  management  of  the  corpora- 
tion, and  shall  be  deemed  to  belong  to  them."  ^^"  This  was  the 
case  of  a  water  company  which  put  down  a  lead  supply  pipe, 
which  poisoned  the  Avater ;  and  it  was  held  that  inasmuch  as  the 
supply  pipe  belonged  to  the  customer  the  company  was  not 
liable.'^' 


i82Milne3  v.  Hudersfield,  11  App. 
Cas.  511;  56  L.  J.  Q.  B.  1 ;  55  L.  T. 
617;  34  W.  R.  761;  50  J.  P.  676; 
affirming  L.  R.  12  Q.  B.  Div.  443; 
which  affirmed  L.  R.  10  Q.  B.  Div. 
124. 

183  A  rule  of  the  gas  company  re- 
serving to  it  the  right  to  make  all 


taps  of  or  connections  with  its 
mains  is  a  reasonable  one.  Poca- 
tello  Water  Co.  v.  Stand  ley 
(Idaho),   61   Pac.  Rep.  518. 

Only  the  company  owning  the 
supply  pipe  can  use  it.  Pough- 
keepsie  Gas  Co.  v.  Citizens'  Gas  Co., 
20   Hun   214. 


CHAPTER  XXVI.' 

METERS    AND    MIXERS. 

§551.  Definitions. 

§552.  Who  must  furnisli. 

§553.  Control  of  meter. 

§554.  Unreasonable  requirements. 

§555.  Inspection  of  iiieters  by  company. 

§556.  Official  inspection  and  tests. 

§557.  Officially  tested  meters  conclusive. 

§558.  Measurements    of    quantity    of    gas    used. 

§559.  Delivery  of  gas. 

§560.  Rules  and  regulations  concerning. 

§561.  Extra  charges  for  meters  and  mixers. —  Government  tax. 

§562.  Requiring   use   of  a   certain   quantity   of  gas   per  month   or  pay  a 

meter  rent. 

§563.  Discrimination  in  use  of  meter. 

§564.  Removal  of  meters. 

§551.     Definitions. 

A  meter  (often  spelled  metre)  may  be  defined  as  an  instru- 
ment, apparatus  or  machine  for  measuring  fluids,  gases,  air 
electrical  currents,  etc.,  and  recording  the  results  obtained.  A 
dry  meter  is  a  gas  meter  not  containing  fluid  as  an  essential 
part  of  it.^  A  water  meter  is  one  in  which  water  is  kept  through 
which  the  gas  passes.  A  gas  mixer  is  a  cylindrical  instrument 
by  which  air  is  mixed  Avith  natural  gas  as  it  enters  the  burner, 
thereby  securing  greater  combustion  and  producing  a  higher 
degree  of  heat  with  the  same  quantity  of  gas. 

§552.     Who  must  furnish. 

It  is  almost  the  universal  practice  of  gas  companies  to  furnish 
gas  meters  whenever  they  are  used ;  but  this  is  a  matter  subject 
to  local  usage.     Frequently  statutes  or  ordinances  require  them, 

1  Standard  Dictionary,  "  Meter." 

617 


618 


on.    AND    GAS. 


to  do  SO,  free  of  charge.  Probably  the  rule  ^vith  respect  to  gas 
mixers  is  not  so  general  as  that  with  respect  to  gas  meters,  and 
patrons  frequently  furnish  their  own.  Where  an  ordinance  or 
statute  requires  them  to  furnish  meters,  a  company  cannot  make 
an  extra  charge  for  them;  and  this  occurs  where  a  company  is 
compelled  to  furnish  gas  at  so  much  a  thousand  feet,  nothing 
being  said  about  who  shall  furnish  the  meter,  it  being  considered 
the  duty  of  the  company  to  furnish  and  attach  it  to  the  pipes 
in  a  proper  manner,  in  order  to  ascertain  the  amount  of  gas 
furnished.^  But  the  company  is  not  required  to  furnish  more 
than  one  meter  for  a  house — not  one  for  each  floor — unless  the 
house  is  occupied  by  different  tenants  who  have  independent 
service  pipes.  When  that  is  the  case,  each  apartment  is  re- 
garded as  an  independent  house.^  And  if  the  company  have  the 
right  to  require  a  consum^fr  to  furnish  a  meter  before  it  will 
supply  him  with  gas,  it  has  no  right  to  insist  that  he  shall  furnish 
a  meter  when  it  does  not  make  that  requirement  of  others ;  for 
all  must  be  treated  alike.  Xor  has  it  the  right  to  require  a 
customer  to  furnisli  expensive  meters  when  a  meter  costing  less 
will  correctly  measure  the  gas.* 


2  Louisville  Gas  Co.  v.  Dulaney, 
100  Ky.  405;  38  S.  W.  Rep.  703;  36 
L.  R.  A.  125 ;  6  Am.  and  Eng.  Corp. 
Cas.  (N.  S.)  241;  Albert  v.  Davis, 
49  Neb.  579;  68  N.  W.  Rep.  945; 
Capital,  etc.,  Co.  v.  Gaines,  20  Ky. 
L.  Rep.  1464;  49  S.  W.  Rep.  462; 
Sheffield  W.  W.  Co.  v.  Carter,  L.  R. 
8  Q.  B.  632.  Contra,  Sheffield  W. 
W.  Co.  V.  Bingham,  L.  R.  25  Ch. 
Div.  443;  48  L.  T.  604;  52  L.  J. 
Ch.  624.  See  State  v.  Sedalia  Gas 
Co.,  34  Mo.  App.  501 ;  and  Ladd  v. 
Boston,  170  Mass.  332;  49  N.  E. 
Rep.  627;  40  L.  R.  A.  171. 

3  Ferguson  v.  Metropolitan  Gas 
Co.,  37  How.  Pr.  189;  Young>\\  Bas- 
ton,   104  Mass.   95. 

The  meters  in  use  are  a  part  of 
the  plant,  for  the  purposses  of  tax- 
ation. Com.  V.  Lowell  Gaslight  Co., 
12  Allen   75. 


4  State  V.  Jersey  City,  45  N.  J. 
L.  246;  2  Am.  and  Eng.  Corp.  Cas. 
233.  It  is  not  unreasonable  to  re- 
quire the  company  to  furnish  a 
meter.  Spring  Valley  W.  W.  v. 
San  Francisco,  82  Cal.  286;  22  Pac. 
Rep.  910,  1046;  6  L.  R.  A.  756;  16 
Am.  St.  Rep.  116.  Such  a  statute 
is  constitutional.  Buffalo  v.  Buffa- 
lo Gas  Co.,  80  N.  Y.  Supp.  1093; 
citing  Louisville  Gas  Co.  v.  Du- 
laney,  100  Ky.  405;  38  S.  W.  Rep. 
703;  36  L.  R.  A.  125.  and  State  v. 
Columbus,  etc.,  Co..  34  Ohio  St. 
579;  32  Am.  Rep.  390,  and  also 
People  V.  Budd,  117  N.  Y.  1;  22 
N.  E.  Rep.  682;  5  L.  R.  A.  559;  15 
Am.  St.  Rep.  460;  Spring  Valley 
W.  W.  Co.,  110  U.  S.  353;  4  Sup. 
Ct.  Rep.  48 ;  Cotling  v.  Kansas  City, 
etc.,  Co.,  183  U.  S.  85;  22  Sup.  Ct. 
Rep.  30;  Munn  v.  Illinois,  94  U.  S. 


METERS    AND    MIXERS. 


619 


§553.     Control  of  meter. 

The  gas  company,  where  it  owns  the  meter,  has  the  absolute 
control  of  it  and  the  lead  pipes  used  to  make  connections  with 
it,  subject  to  the  use  of  it  by  the  patron.  If  the  patron  ow^ns  it, 
the  company  cannot  remove  it  if  he  cease  using  gas,  but  it  can 
if  it  owns  the  meter.  Their  remedy  is  to  cut  the  gas  off  where 
it  does  not  own  the  meter,  before  it  enters  on  the  patron's  prem- 
ises, in  case  of  non-user.  Where  the  company  own  it  and  place 
it  in  position,  attached  to  the  pipes,  this  is  not  a  bailment  of  it. 
In  such  an  instance  the  patron  or  consumer  has  no  right  to  in- 
terfere with  it  without  notice  to  the  company,  unless  in  a  case 
of  emergency  to  prevent  damages.  Xor  has  he  any  right  to 
place  a  governor  upon  it  to  regulate  the  pressure  of  the  gas,  or 


113,  as   directly  in  point  in  princi- 
ple. 

The  English  cases  seem  to  hold 
that  although  a  water  company  is 
not  bound  to  furnish  a  meter,  yet 
the  consumer  is  also  not  bound  to 
furnish  one;  for  he  may  prove  the 
amount  of  water  he  receives  inde- 
pendent of  meter  measurement.  "  I 
do  not  intend  to  decide  that  a 
meter  is  necessary.  ...  I  am 
not  going  to  decide  that  any  par- 
ticular meter  must  be  used.  .  .  . 
All  I  am  going  to  decide  is  that 
Mr.  Brigham  must  at  his  own  ex- 
pense measure  the  water  and  re- 
cord that  measurement,  and  that 
he  must  give,  of  course,  all  facili- 
ties to  the  company  to  ascertain 
that  he  has  measured  the  water, 
and  that  he  has  measured  it  in 
some  way  or  other  which  is  an  ac- 
curate way  of  taking  the  measure- 
ment." Sheffield  W.  W.  Co.  v. 
Bingham,  25  Ch.  Div.  443.  and  446 
(36  Gas  J.  769);  Sheffield  W.  W. 
Co.  V.  Carter,  8  L.  R.  Q.  B.  Div. 
632;  51  L.  J.  M.  C.  97;  30  W.  R. 
889;  46  J.  P.  .548.  See  also  Levy 
V.   Water   Works   Co.,   38   La.   Ann. 


29;    Ernest  v.   Xew  Orleans  W.  W. 
Co.,   39  La.   Ann.   550. 

A  city  charter  authorized  its 
council  to  legislate  for  the  protec- 
tion of  the  city  water  works  and 
the  use  of  water  taken  from  them, 
and  also  as  to  the  means  of  ascer- 
taining the  amounts  to  be  paid  as 
water  rates,  and  the  water  system 
was  such  that  the  consumer,  at  his 
own  expense,  made  connections  with 
the  mains.  It  was  held  proper  for 
the  council  to  adopt  an  ordinance 
requiring  the  consumers,  at  their 
own  expense,  to  provide  meters  for 
measuring  the  water  they  took,  and 
that  the  ordinance  might  provide 
that  only  those  using  supply  pipes 
over  a  certain  diameter  should  be 
compelled  to  use  meters.  State  v. 
Goswell  (Wis.).  93  N.  W.  Rep. 
542;  citing  Sheffield  W.  W.  Co.  v. 
Bingham,  supra;  Red  Star  S.  S.  Co. 
V.  .Jersey  City,  45  N.  J.  L.  246; 
Spring  Valley  W.  W.  v.  San  Fran- 
cisco, supra ;  Sheffield  W.  W.  Co. 
V.  Carter.  L.  R.  8  Q.  B.  Div.  6.32; 
51  L.  J.  M.  C.  97;  30  W.  R.  889; 
46  J.  B.  548. 


620  OIL    AND    GAS. 

uiDoii  the  supply  pipe  leading  to  the  meter,  if  it  belong  to  the 
company ;  and  if  he  do,  or  any  one  else,  the  act  is  such  a  trespass 
as  may  be  enjoined  and  the  removal  of  the  governor  be  com- 
pelled. In  such  an  instance  the  court  will  readily  interfere  by 
an  injunction  ;  for  as  gas  is  a  dangerous  article,  which  if  it  escape 
may  produce  great  injury  or  damages,  the  necessity  for  issuing 
an  injunction  is  much  more  urgent  and  necessary  than  in  an 
ordinary  trespass.  Even  the  defense  of  laches  will  not  prevail 
in  such  an  instance.  And  if  a  third  person  has  placed  the  gov- 
ernor on  the  meter,  he  may  be  enjoined  and  compelled  to  remove 
it ;  and  in  such  an  instance  it  is  not  necessary  to  make  the  owner 
of  the  premises  a  party.  In  such  an  instance  the  owner  cannot 
object  to  its  removal.  But  the  owner  of  the  premises  has  a  right 
to  put  a  governor  on  his  pipes  after  the  gas  has  passed  through 
the  meter;  or  to  attach  it  to±lie  end  of  his  pipe  nearest  the  com- 
pany's meter;  and  perhaps  so  much  of  the  supply  pipe  as  he 
owns  and  which  is  on  his  premises ;  and  even  here  the  company 
have  a  right  to  adopt  reasonable  regulations.^  A  consumer, 
however,  is  not  relieved  from  all  care  of  a  meter  entrusted  to  his 
care ;  for  he  is  required  to  take  proper  care  of  it ;  and  if  he 
permit  it  to  get  out  of  repair  through  his  neglect  of  duty  he  owes 
toward  it,  he  may  be  bound  by  the  result  of  its  measurements, 
in  case  there  is  a  substantial  dispute  over  the  amount  furnished.'' 

5  Blondell  v.  Consolidated  Gas  is  not  kept  in  the  meter,  the  com- 
Co..  89  Md.  732;  43  Atl.  Eep.  817;  pany  will  be  liable  for  the  dam- 
46  L.  K.  A.  187.  The  secretary's  ages  occasioned.  Ellis  v.  London 
consent  to  attach  the  meter   is  not  Gaslight  Co.,  32  Gas  J.  849. 

the   company's.     De  Mattos  v.  Gib-  That  the   owner  of  the  premises, 

son,  4  De  G.  &  J.  276.     See  Biaen  whether  he  or  his  tenant  uses  gas, 

Avon  Coal  Co.  v.  McCuUoh,  59  Md.  has    no    right    to    interfere    with    a 

403 ;    43  Am.  Rep.   560.  meter    or    mixer    without    notice    to 

A  rule  that  the  governor  shall  be  the  company,  see  Pennsylvania  Gas 

connected    with    the    pipe    one    foot  Co.  v.  Warren  Gas  Co.,  3  Pa.  Dist. 

from  the  meter  is  a  reasonable  one.  Rep.  67. 

Foster   v.    Pliiladelphia   Gas   Works  Where  a   city  infringed  a   patent 

Trustees,   12   Phila.   511.  by  using  disks  in  its  water  meters, 

6  Preston  v.  Hayton,  etc..  Gas  it  was  required  to  remove  them, 
Co.,  25  Gas  J.  889;  Victoria  Docks  although  it  took  time  and  trouble 
Gas  Co.  V.  Burton,  16  Gas  J.  103.  to  locate  and  do  so.     National  Me- 

If  an  explosion  is  occasioned  be-  ter  Co.  v.  Poughkeepsie,  75  Fed. 
cause  a  sufficient  quantity  of  water       Rep.  405. 


METERS    AXD    MIXERS.  621 

§554.     Unreasonable  requirements. 

An  ordinance  required  a  gas  company  to  furnish  natural  gas 
by  meters  or  through  mixers,  at  the  option  of  the  consumer ;  but 
it  was  held  void  for  unreasonableness,  for  the  reason  that  the 
company  may  be  able  to  use  other  appliances,  at  less  cost  to  it, 
and  without  injury  to  the  company.^ 

'555.     Inspection  of  meters  by  company. 

The  company  has  the  right  to  enter  on  the  premises  at  reason- 
able times,  upon  notice  first  given  of  its  intention,  to  inspect 
the  meter,  and  especially  to  ascertain  the  amomit  of  gas  used.* 
In  this  respect,  however,  there  are  mutual  rights  and  obligations 
that  must  be  observed.  The  company  has  no  right  to  visit  the 
premises  at  unseemly  hours  —  perhaps  not  out  of  business  hours 
—  except  in  a  case  of  emergency ;  nor  to  visit  them  more  than 
actually  necessary,  nor  to  remain  on  the  premises  for  a  lenger 
period  than  is  necessary  to  make  the  inspection  or  necessary  re- 
])airs.  Xor  can  the  owner  or  consumer  deny  them  the  right  to 
make  all  necessary  inspection ;  for  if  he  do,  the  gas  company 
would  be  justified  in  removing  the  meter  and  refusing  to  supply 
him  wath  gas,  or  cutting  off  his  supply ;  or  it  might  bring  an 
action  to  compel  him  to  allow  an  inspection.  But  wdiere  it  ap- 
peared that  the  defendant,  in  an  action  to  compel  him  to  permit 
the  gas  company  to  inspect  a  gas  meter,  was  the  lessee  of  the 
grounds  and  cellar  floor  of  the  Imilding,  the  upper  floor  of  wdiich 
was  occupied  by  other  tenants  ;  that  the  gas  meter  for  this  upper 
floor  was  in  the  cellar,  having  been  placed  there  by  the  owmer  of 
tlie  premises  before  the  defendant  took  his  lease,  in  which  no 
mention  was  made  of  the  meter ;  and  it  did  not  a]^pear  it  would 
be  impracticable  to  place  the  meter  on  the  upper  floor,  it  w^as 
held  that  the  company  must  fail  in  its  action.'' 

"  Toledo    V.    X.    W.    Natural    Gas  s  Shepard   v.   Milwaukee   Gaslight 

Co.,  5  Ohio  Cir.  Ct.  557 ;  3  Ohio  Cir.  Co.,  6  Wis.  539 ;  70  Am.  Dec.  479. 

Dec.  273.     See  Indiana,  etc.  Gas  Co.  9  Wilkcs-Barre  Gas  Co.  v.  Turner, 

V.    State.    158    Ind.    516;    63    N.    E.  7   Kulp    399. 
Rep.   220;   57  L.   R.   A.   761. 


622  OIL    AND    GAS. 

§556.     Official  inspection  and  tests. 

In  many  instances  statutes  or  ordinances  require  official  in- 
spection and  tests,  or  insj^ections  and  tests  by  state  or  municipal 
authority.  Usually  these  statutes  or  ordinances  provide  for 
sealing  the  meter,  if  found  correct,  and  that  a  certificate  of 
approval  he  furnished.  In  such  an  instance  mandamus  lies  to 
compel  the  state  or  municipal  official  to  make  an  inspection  and 
test  of  a  meter  placed  in  proper  position.^"  A  statute  providing 
that  the  gas  companies  of  the  State  should  pay  the  salary  of  a 
State  gas  inspector  was  held  valid,  it  not  being  a  tax  for  the 
purpose  of  general  revenue  within  the  meaning  of  a  provision 
of  the  constitution  requiring  that  taxes  should  be  assessed  upon 
property  by  a  uniform  rule,  but  a  charge  for  a  special  purpose 
growing  out  of  the  suj^ervisorv  power  of  the  State  over  their  bus- 
iness, and  was  not  a  tax  on  property. ^^ 

§557.     Officially  tested  meters  conclusive. 

In  New  Brunswick  a  meter  examined,  tested  and  stamped  by 
a  government  official  is  conclusive  in  its  measurements  when  a 
contest  arises  over  the  amount  of  gas  furnished ;  but  the  gas 
company  has  the  burden  to  show  that  it  was  examined,  tested 
and  stamped  as  correct  and  accurate  in  its  measurements.^' 
But  in  Xew  York  the  consumer  may  shoAV  by  reliable  testimony 
that  he  did  not  receive  the  amount  of  gas  registered  by  an  offi- 
cially inspected  meter. ^^  For  instance,  he  may  show  that  the 
gaslight  went  out  by  air  passing  through  the  tubes,  as  affecting 
the  quantity  of  gas  consumed.^*  And  where  the  consumer  had 
entered  into  a  contract  to  take  the  meter  measurement  as  the 
measure  of  the  quantity  of  gas  furnished ;  it  was  held  that  the 
consumer  would  not  be  bound  by  the  registration  of  the  meter 
if  it  had  not  been  examined  and  certified  to  by  the  official  in- 

10  7u  re  McDonald,  16  Misc.  (N.  is  sickles  v.  Manhattan  Gaslight 
Y.)    304;   39  N.  Y.  Siipp.  367. '*"  Co.,   66   How.   Pr.    314;    Tarrytown. 

11  Cincinnati  Gaslight  and  Coke  etc.  Gaslight  Co.  v.  Bird,  65  Hun 
Co.  V.  State,  18  Ohio  St.  237.  621 ;    19  N.  Y.  Supp.  988. 

12  St.  John  Gas  Co.  v.  Clarke,  17  i*  Tarrytown,  etc.,  Gaslight  Co. 
N.  B.  307.  V.   Bird,  supra. 


METEKS    AXD    MIXEKS.  623 

spector/^  Where  there  is  a  dispute  over  the  accuracy  of  the 
meter's  measurements,  an  injunction  lies  to  prevent  the  com- 
pany cutting  off  the  gas  until  the  accuracy  of  the  charge  can  be 
determined  by  a  suit  at  law.^** 

§558.     Measurements  of  quantity  of  gas  used. 

The  correct  measurement  of  gas  is  a  subject  of  im}X)rtance 
both  to  the  gas  company  and  consumer.  Usually,  if  not  univer- 
sally, in  the  case  of  artificial  gas,  the  amount  consumed  is  deter- 
mined by  a  meter.  And  it  may  be  laid  do^vn  as  a  general  rule 
that  the  amount  registered  by  a  meter  is  presumed  to  have  been 
supplied  and  to  be  a  correct  measurement,  unless  there  be  evi- 
dence to  cast  a  doubt  upon  its  correctness.  Thus  where  the 
question  was  whether  the  meters  had  registered  correctly,  in  an 
action  to  recover  back  money  paid  for  gas  in  excess  of  what  was 
due,  and  the  evidence  showed  that  they  registered  correctly  at 
a  level,  but  registered  in  favor  of  the  company  at  a  high-water 
level,  and  in  favor  of  the  consumer  at  a  low-water  level ;  and 
that  since  dry  meters  had  been  put  in,  the  bills  diminished,  it 
was  held  that  taking  into  account  the  fact  that  the  consumers 
must  take  proper  care  of  their  meters,  and  the  conflict  of  the 
evidence,  the  decision  must  be  for  the  defendant — the  gas  com- 
pany. ^^  So  where  the  action  was  to  recover  for  gas  converted 
by  the  consumer  to  his  own  use,  and  it  appeared  that  in  some 
way  the  meter  became  tilted,  and  the  gas  passed  through  with- 
out registry,  and  the  action  was  to  recover  the  price  of  the  gas 
it  was  estimated  had  passed  through  the  meter  without  registry, 
and  the  consumer  contended  he  had  used  only  the  amount  regis- 
tered ;  and  for  this  he  had  paid ;  yet  the  jury  found  for  the 
plaintiffs.^*  While  it  is  true  the  meter  measurement  is  prima 
facie  correct,  yet  the  consumer  may  show  it  is  incorrect;  and 
that  too,  even  though  a  statute  provides  that  such  measurement 

15  Manhattan  Gas  Co.  v.  Flamme,       Co.,  25  Gas  J.  889. 

12  N.  Y.  Weekly  Dig.   245.  is  Victoria  Docks  Gas  Co.  v.  Bur- 

16  Sickles  V.  Manhattan  Gaslight  ton,  16  Gas  J.  103.  See  also  Hack- 
Co.,   supra.  er  v.   London   Gaslight  Co.,   32   Gas 

I'?  Preston    v.    Hayton,    etc.,    Gas       J.  781. 


624  OIL    AND    GAS. 

shall  be  taken  as  prima  facie  evidence  of  its  correctness/® 
Where  the  action  was  to  recover  for  gas  alleged  to  have  been  fur- 
nished and  not  registered  because  of  its  having  been  tampered 
with,  and  it  appeared  that  the  defendant  had  increased  the  num- 
ber of  his  burners  at  a  certain  date,  although  the  gas  thereafter 
sensibly  diminished;  and  six  years  thereafter  the  meter  was 
tested  by  the  gas  inspector  and  found  to  be  correct,  but  after- 
wards it  was  discovered  that  the  water  in  the  meter  was  kept  too 
low,  a  simple  fact  easily  discovered ;  and  a  part  of  the  meter 
machinery  was  so  arranged  tliat  it  did  not  register;  it  was  held 
that  the  plaintiff  could  recover  for  no  gas  used  before  the  date  ol 
the  inspection. "°  In  the  case  of  a  wet  meter,  it  seems  to  be  the 
duty  of  the  gas  company  to  keep  it  properly  supplied  with 
water.  "^ 

§559.     Delivery  of  gas.  it 

When  gas  has  passed  through  the  meter  it  is  delivered  to  the 
consumer ;  and  the  title  to  it  then  vests  in  him.  So  that  if  after 
that  period  of  time  a  third  person  obtains  the  use  of  it,  the  gas 
company  is  not  liable  for  the  consumer's  loss,  and  he  must  pay 
for  all  registered  by  the  meter."' 

§560.     Rules  and  regulations  concerning. 

A  gas  company  has  full  power  to  adopt  reasonable  regulations 
and  rules  concerning  meters  and  their  use.  And  so  has  a 
municipality  furnishing  gas  to  private  consumers.  An  order 
that  all  regulators  or  governors  shall  be  attached  to  the  gas  pipes 

19  Alliance,  etc.,  Co.  v.  Taaffe,  27       ond  meter  of  his  own,  he  was  fined. 
Gas  J.  206.  In    re    Gaslight    and    Coke    Co.,    57 

20  Imperial   Gas   Co.   v.   Porter,   5       Gas  J.    1196. 

Gas  J.   372,  403.  22  Chouteau  v.  St.  Louis  Gasliglit 

21  Hacker  v.  London  Gaslight  Co.,       Co.,  47  Mo.  App.  326.     See  Schmeer 
'62  Gas  J.  781.  v.  Gaslight  Co.,   147  N.  Y.  529;  42 

Where  a  statute  forbade  any  one  N.  E.  Rep.  202;   70  N.  Y.  St.  Rep. 

to    lay    any    pipe    to    communicate  92;    30   L.   R.   A.   653;    Blondell   v. 

with    the    company's    pipe    without  Consolidated  Gas  Co.,  89  ]Md.   732 ; 

its    consent,    under    a    penalty,   and  43  Atl.  Rep.  817;   46  L.  R.  A.  187; 

a   consumer   being   dissatisfied   with  Indiana,    etc.,    Co.    v.    Anthony,    26 

the  company's  meter,  put  up  a  sec-  Ind.  App.  307;  58  N.  E.  Rep.  868. 


METERS    AND    MIXERS.  625 

or  to  the  meter,  unless  placed  upon  a  by-pass  so  as  the  flow  of  gas 
may  be  directed  through  the  pipes  without  passing  through  the 
governor  regulator,  is  a  just  and  reasonable  regulation.'"" 

§561.     Extra  charges  for  meters  and  mixers. —  Government  tax. 

A  company  cannot  make  a  charge  for  meter  rent,  where  its 
rate  is  fixed  by  a  statute  or  an  ordinance.  Thus  where  a  com- 
pany by  its  charter  was  authorized  to  supply  customers  with 
gas,  "  under  reasonable  regulations,"  at  a  price  not  to  exceed 
one  dollar  and  thirty-five  cents  a  thousand  cubic  feet,  it  was  held 
it  could  not  charge  a  meter  rent  in  addition  if  less  than  a  certain 
quantity  was  used.  The  compa:ny  Avas  bound  to  furnish  the 
meter  to  measure  the  gas  the  court  said,  and  could  not  charge 
for  such  a  necessity."*  But  where  neither  a  statute  nor  an  ordi- 
nance, nor  the  company's  charter  impose  any  restriction  upon 
the  company  concerning  its  charges,  it  may  charge  small  cus- 
tomers more  than  large  ones,  and  such  charges  are  not  invalid 
because  they  are  called  meter  rents  ;  when  in  fact  the  charges  are 
charges  up  to  a  certain  amount."^  Adding  the  amount  of  the 
government's  tax  to  the  price  is  a  legitimate  charge."® 

23  Foster  v.  Philadelphia  Gas  Buflfalo  v.  Buffalo  Gas  Co.,  80  N.  Y. 
Works,  12  Phila.  511;  Blondell  v.  Supp.  1093 ;  State  v.  Columbus,  etc., 
Consolidated  Gas  Co.,  supra.  Co.,   34   Ohio   St.   579 ;    32   Am.   St. 

Using  meters  in  some  of  the  sup-  Rep.   390. 

ply  pipes  of  a  building  by  a  water  -^  State    v.    Sedalia    Gas    Co.,    34 

company    to    determine    whether    or  Mo.  App.  501. 

not  move  than  150  gallons  per  day  2g  gt.    Louis    Gaslight   Co.   v.    St. 

are    being    used    in    violation    of    a  Louis,  11  Mo.  App.  55;  84  Mo.  202. 

provision  regvilating  the  amount  of  Where  the  company's  charter  con- 

Avater   that   may   be   used,   does   not  tained   no   reference  to  its   right  to 

violate  a  statute  requiring  the  scale  charge   a   meter   rent,   a   subsequent 

of    water    rates    to   be   general    and  statute  provided  that  "  no  gas  com- 

vmiform.      Frothingham   v.    Bensen,  pany  shall  have  the  right  to  charge 

20  Misc.   132 ;   44  N.  Y.  Supp.  879.  rent  for  meters,  when  500  cubic  feet 

24  Louisville  Gas  Co.  v.  Dulaney,  per  month  have  been  consumed  " ;  it 
100  Ky.  405;  38  S.  W.  Rep.  703;  was  held  that  the  statute  was  bind- 
36  L.  R.  A.  125 ;  6  Am.  and  Eng.  ing  on  the  company.  State  v.  Col- 
Corp.  Cas.  (N.  S.)  241;  Capital,  imibus  Gaslight  and  Coke  Co.,  34 
etc.,  Gas  Co.  v.  Gaines,  20  Ky.  L.  Ohio  St.  572;  32  Am.  Rep.  390. 
Rep.    1464;    49    S.    W.    Rep.    462; 


626  OIL    AND    GAS. 

§562.     Requiring  use  of  a  certain  quantity  of  gas  per  month  or 
pay  a  meter  rent. 

Where  a  gas  company  cannot  charge  a  meter  rent,  it  cannot 
evade  the  prohibitory  clause  by  indirection.  Nor  can  it  adopt 
a  rule  that  if  a  certain  amount  of  gas  is  not  consumed  within  a 
month  or  other  period  of  time,  the  consumer  shall  pay  a  certain 
amount  regardless  of  the  amount  consumed.  To  permit  such  a 
charge  is  in  fact  to  allow  the  company  to  charge  a  meter  rent, 
and  thus  cast  a  burden  on  the  consumer  it  is  bound  to  carry."^ 

§563.     Discrimination  in  use  of  meter. 

A  company  cannot  show  discrimination  between  two  patrons 
by  requiring  one  of  them  to  take  gas  by  meter  measurement  and 
permit  the  other  to  take  it  by  a  "  flat  "  rate,  if  the  discrimination 
is,  in  some  measure,  unjust  and  oppressive.  But  there  must  be 
something  more  than  mere  discrimination.  The  discrimina- 
tion prohibited  must  not  only  be  an  actual  one,  but  it  must  be 
both  unjust  and  oppressive,  to  some  extent.  Thus  where  an 
ordinance  provided  that  a  gas  company  might  charge  twenty 
cents  per  thousand  cubic  feet,  or  a  certain  named  "  flat  "  rate, 
it  was  held  in  a  proceeding  for  a  mandamus  to  compel  it  to  fur- 
nish the  applicant  gas  at  the  "  flat  "  rate,  as  it  was  furnishing  all 
its  other  patrons,  instead  of  the  meter  rate,  that  the  applicant 
was  not  entitled  to  the  writ  unless  he  showed  that  the  meter  rate 
was  a  higher  rate  than  the  ''  flat "  rate.'^ 

ST'  Buffalo  V.   Buffalo  Gas  Co..  80  his  own  expense  and  pay  by  meter 

N.  Y.   Supp.   1093.  measurement    instead    of    a    "  flat  " 

28  Indiana,  etc.,  Gas  Co.  v.  State,  rate  is  valid;  and  he  cannot  be  de- 

158   Ind.   ,516;    63   N.   E.   Rep.  220;  nied  his  right  to  exercise  the  option 

57  L.  R.  A.  761.  given  him.     State  v.  Joplin  W.  W., 

That    a    discrimination    must    be  52  Mo.  App.  312.     An  ordinance  is 

both     unjust     and     oppressive,     see  not  invalid  that  gives  a  householder 

Cleveland,  etc.,  ti.  R.  Co.  v.  Closser,  the   option   to  require  a  meter   and 

126   Ind.   348,    354;    26   IST.    E.    159,  pay   for  water  used  at  rates  which 

Itil;    9    L.    R.    A.    754;    22   Am.-'-St.  are    different   from    the    fixed   house 

Hep.  593.  rates.     Spring  Valley  W.  W.  v.  San 

An    ordinance   of   a    municipality  Francisco,     82    Cal.    286;     22    Pac. 

or    a    rule    of    tlic    company    that   a  Rep.   910.    1046.      See   State  v.   Gos- 

consumer   may    put    in    a    meter    at  well    (Wis.),  93  N.  W.  Rep,  542. 


METERS    AND    MIXERS.  627 

8564.     Removal  of  meters. 

So  long  as  a  patron  complies  with  the  rules  and  regulations  of 
the  company,  and  pays  his  bills,  the  company  cannot  remove  the 
meter  from  his  premises,  unless  it  be  to  replace  it  with  another. 
But  where  a  company  was  not  required  to  put  in  service  pipes, 
yet  entered  into  an  agreement  with  the  o'wner  of  the  premises  to 
do  so,  such  owner  (who  was  the  consumer)  agreeing  to  pay  the 
cost  thereof ;  it  was  held  that  the  company  had  the  right  to  re- 
move its  meter  on  the  owner  refusing  or  failing  to  pay  for  the 
pipes.""  And  where  a  consumer  resorts  to  other  methods  of 
light,  as  the  introduction  of  electric  lights,  and  thereafter  uses 
gas  only  occasionally,  he  ceases  to  be  a  consumer,  and  the  com- 
pany may  recover  his  meter."**  And  where  a  company  charged 
meter  rent,  though  other  consumers  were  not  charged  such  a 
rent,  and  the  customer  refused  to  pay  it,  and  did  not  use  enough 
gas  by  a  sixth  part  to  pay  the  meter  rent,  it  was  held  that  the 
company  had  the  right  to  refuse  him  gas.'^^  Permitting  a  com- 
pany to  remove  its  meter  pending  a  dispute  as  to  the  liability  of 
the  company  to  a  penalty  incurred  by  its  refusal  to  supply  the 
consumer,  does  not  prevent  such  consumer  enforcing  the  re- 
placement of  the  meter,  after  the  dispute  is  settled.^" 

29  Detroit    Gas    Co.     v.    Moreton  3i  Smith  v.  Capital  Gas  Co.,   132 

Treich,  etc.,  Co.,  Ill  Mich.  401;    69  Cal.  209;   64  Pac.  Rep.   258. 

N.    W.    Rep.    659.     In    this   case   it  32  Jones    v.    Rochester    Gas,    etc., 

was    held    that    replevin    lay    to    re-  Co.,    7    App.    Div.    474;     39    N.    Y. 

cover  the  meter.  Supp.    1110. 

See  Glasgow  v.  Patrick,  etc.,  Co.,  If  the  company  is  bound  to  re- 
22  Gas  J.  54.  move  the  meter  on  notice,  the  con- 
so  Adams  Express  Co.  v.  Cincin-  sumer  cannot  remove  it ;  and  if  he 
nati  Gaslight  and  Coke  Co.,  10  Ohio  ao  or  attempt  it,  the  company  may 
Dec.  389;  21  Wkly.  Law  Bull.  18;  enjoin  him.  Glasgow  v.  Patrick, 
Fleming  v.  Montgomery  Light  Co.,  etc.,  Gas  Co.,  22  Gas.  J.  54. 
100  Ala.  657;    13  So.  Rep.  618. 


CHAPTER  XXVII. 

FIXTURES. 

Art.   1.     Domestic  fixtures. 

Art.  2.     Trade  fixtures. 

Art.  3.     Oil  and  gas  lease  fixtures. 

§565.     Division  of  subject. 

The  subject  of  fixtures  relative  to  gas  or  oil  necessarily 
follows  the  lines  laid  clo^\^l  i^  text  books  on  that  subject;  such 
as  whether  the  question  is  one  between  vendor  and  vendee, 
lessor  and  lessee,  landlord  and  tenant,  and  mortgagor  and 
mortgagee.  Another  division  is  whether  the  article  in  dispute 
is  a  domestic  or  trade  fixture ;  or  whether  it  is  one  used  upon 
oil  or  gas  producing  territory  in  the  production  or  supply  of 
oil  or  gas.  The  fixtures  used  in  the  latter  instance  usually  have 
reference  to  the  production  of  petroleum  or  natural  gas.  The 
subject,  therefore,  can  be  divided  into  three  general  subjects. 

AETICLE  1. 
DOMESTIC  FIXTUEES. 

§;)65.  Division  of  subject. 

§566.  Intent. —  Common  law. —  Public  policy. 

§567.  Agreement. —  Innocent  purchaser. —  Injury  to  freehold. 

S568.  Gas  chandeliers. —  Stoves. —  Meters,  etc. 

S.")6n.  Judicial  sale  of  premises. 

is.lTO.  Gas  fixtures  may  pass  to  vendee. 

§566.     Intent. —  Common  law. —  Public  policy. 

The  question  of  the  intent  with  which  an  article  is  affixed 
to  the  premises  or  building  is  one  that  must  always  be  consid- 

628 


FIXTURES.  629 

ered  in  determining  whether  or  not  it  is  a  fixtnre. 
The  intent  must  often  be  gathered  from  the  kind  of  article 
in  controversy,  and  how  it  is  attached  to  the  premises.  If 
an  article  is  so  attached  to  the  premises  by  the  owner  of  them 
that  it  cannot  be  removed  without  material  injury  to  the  free- 
hold, and  there  is  no  contract  with  reference  to  it,  then  it  is  a 
part  of  the  freehold,  and  will  pass  to  a  purchaser  of  the  premises 
or  be  covered  by  a  mortgage  given  by  the  owner  of  the  free- 
hold. ''  The  united  application  of  three  requisites  is  regarded 
as  the  true  criterion  of  an  immovable  fixture :  ( 1 )  Real  or 
constructive  annexation  of  the  article  in  question  to  the  freehold. 
(2)  Appropriation  or  adoption  to  the  use  or  purpose  of  that  part 
of  the  realty  with  which  it  is  connected.  (3)  The  intention  of 
the  party  making  the  annexation  to  make  the  article  a  perma- 
nent accession  to  the  freehold."  ^ 

Continuing  the  court  says :  "  According  to  the  elementary 
rule  of  the  common  law  whatever  is  annexed  to  the  freehold  be- 
comes, in  legal  contemplation,  a  part  of  it,  and  is  thereafter  sub- 
ject to  the  same  incidents  and  conditions  as  the  soil  itself.  But 
the  diversity  of  trade  and  the  development  of  manufactures  re- 
quire that  the  strict  rules  of  the  common  law  be  measurably 
relaxed,  and  it  may  now  be  said  that  the  nature  of  the  article 
and  the  manner  in  which  they  are  affixed,  and  the  intention  of 
the  party  making  the  annexation,  together  with  the  policy  of  the 
law,  are  controlling  factors  in  determining  whether  an  article, 
which  may  or  may  not  be  a  fixture,  becomes  a  part  of  the  realty 
by  being  annexed  to  the  freehold.  The  purpose  or  intention  of 
the  parties,  the  effort  and  mode  of  annexation,  and  the  public 
policy  in  relation  thereto,  are  all  to  be  considered."' 

1  Binkley  v.  Forkner,  117  Ind.  "Mere  physical  annexation  is  no 
176;  19  N.  E.  Rep.  753;  citing  Teatf  longer  the  rule.  .  .  .  The  inten- 
V.  Hewitt,  1  Ohio  St.  511,  530;  tion  to  annex,  whether  rightfully  or 
Potter  V.  Cromwell,  40  N.  Y.  287 ;  wrongfully,  is  the  legal  criterion." 
McRea  v.  Central  Nat'l  Bank,  66  See  also  ITayford  v.  Wentvvorth 
N.  Y.  489,  quoted  in  Parker  Land  (Me.),  54  All.  Kep.  940.  where  it 
Improvement  Co.  v.  Reddick,  18  was  held  that  a  "  wash-down  syphon 
Ind.  App.   616;   47  N.  E.  Rep.  848.  water  closet,  and  its  appurtenances, 

2  In  Shellar  v.  Shivers,  171  Pa.  put  into  a  business  office  in  the 
St.  569,  33  Atl.  Rep.  95,  it  is  said:  usual   manner  by   a    tenant    at   will 


630  OIL    AND    GAS. 

^567.     Agreement. —  Innocent  purchaser. —  Injury  to  freehold. 

In  the  case  already  quoted  from  it  is  said  concerning  agree- 
ments relating  to  fixtures:  "When  the  parties  immediately 
concerned,  by  an  agreement  between  themselves,  manifest  their 
purpose  that. the  property  although  it  is  annexed  to  the  soil,  shall 
retain  its  character  as  personalty,  then,  except  as  against  persons 
who  occupy  the  relation  of  innocent  purchasers  without  notice, 
the  intentions  of  the  parties  will  prevail,  unless  the  property  be 
of  such  a  nature  that  it  necessarily  becomes  incorporated  into, 
and  a  part  of,  the  realty  by  the  act  and  manner  of  annexation.^ 
Thus,  if,  in  the  course  of  constructing  a  house,  brick  should  be 
placed  in  the  walls,  and  joists  and  beams  in  their  places,  the 
brickmaker  and  sawyer  would  not  be  permitted  to  despoil  the 
house  by  asserting  an  agreemcj^t  with  the  owner  that  the  brick 
and  beams  were  to  retain  their  character  as  personalty  notwithr 
standing  their  annexation.  In  such  a  case  the  mental  attitude 
of  the  parties  cannot  modify  the  legal  effect  from  the  annexa- 
tion.* But  when  chattels  are  of  such  a  character  as  to  retain  their 
identity  and  distinctive  characteristics  after  annexation,  and 
do  not  thereby  become  an  essential  part  of  the  building,  so  that 
the  removal  of  the  chattels  will  not  materially  injure  the  build- 
ing, nor  destroy  or  unnecessarily  impair  the  value  of  the  chat- 
tels, a  mutual  agreement  in  respect  to  the  manner  in  which  the 
chattels  shall  be  regarded  after  annexation  will  have  the  effect 
to  preserve  the  personal  character  of  the  property  between  the 
parties  to  the  agreement."     Accordingly,  the  proposition  is  well 

for  his  own  use.  and  which  could  be  Ind.    511,   and  Yater  v.   Mullen,   24 

removed  without  material  injury  to  Ind.  277. 

the  realty,   did   not  become  merged  4  Citing    Campbell    v.    Roddy,    44 

in  the  realty  unless  it  was  so  put  in  X.   J.   Eq.   244;    14   Atl.   Rep.   279; 

with    an   intention   to   make   a    per-  Henkle  v.    Dillon,    15    Ore.    610;    17 

iiianent   accession   to  the   realty."  Pac.  Rep.  148. 

As  to  what  gas  fixtures  are  cov-  s  Citing   Rogers   v.    Cox,    96    Ind. 

ered   by   a    ])olicy    of    insurance,   see  157;    Price  v.   Malott,   85  Ind.  266; 

New  York  Gaslight  Co.  v.  Mechan-  Hendy    v.    DinkcrshoflF.    57    Cal.    3; 

ics'  Fire  Ins.  Co..  2  Hall  lOS.  Haven  v.  Emery.  33  N.  H.  66;   Ma- 

3  Citing    Taylor    v.    Watkins,    62  lott  v.  Price,   109  Ind.  22;   9  N.  E. 

Rep.    718. 


FIXTURES.  631 

sustained  that  one  who  purchases  machinery  with  a  view  that  it 
shall  be  annexed  to,  or  placed  in,  a  building  of  Avhich  he  is  the 
o-wiier,  and  who  executes  a  chattel  mortgage  on  the  property  so 
purchased,  thereby  evinces  his  intention  that  the  property  shall 
retain  its  character  as  j>ersonalty,  regardless  of  the  manner  in 
which  it  may  be  annexed  to  the  freehold."  Except  where  the 
rights  of  innocent  purchasers  are  involved,  it  is  the  policy  of 
the  law  to  uphold  such  contracts  in  the  interest  of  trade."  '  It 
was  also  held  in  this  case  that  if  the  detachment  of  the  fixtures 
covered  by  the  chattel  mortgage  would  occasion  some  diminution 
in  value  of  the  freehold,  as  it  would  have  stood  had  the  attach- 
ment not  been  made,  then  the  depreciation  must  be  made  whole 
by  the  chattel  mortgagee  to  a  junior  mortgagee  of  the  freehold, 
and  the  rights  of  the  parties  adjusted  by  the  court  according  to 
the  equity  of  the  case.^ 

§568.     Gas  chandeliers. —  Stoves. —  Meters,  etc. 

But  while  the  quotations  made  in  the  preceding  sections 
seem  to  lay  down  rules  easily  understood,  yet  trouble  arises  in 

6  Citing  Eaves  v.  Estes,  10  K&n.  standing  their  annexation,  and  those 
314;  Ford  v.  Cobb,  20  N.  Y.  344;  which  necessarily  become  absorbed 
Sisson  V.  Hibbard,  75  N.  Y.  542;  or  merged  in  the  realty  by  being 
Tift  V.  Horton,  53  N.  Y.  377;  Camp-  annexed  must  be  kept  in  view." 
bell  V.  Roddy,  44  N.  J.  Eq.  244;  14  s  Binkley  v.  Forkner,  117  Ind. 
Atl.  Rep.  279;  Henkle  v.  Dillon.   15  176;   10  N.   E.  Rep.  753. 

Ore.   610;    17   Pac.   Rep.    148.  Electric  lighting  fixtures  used  in 

7  Binkley  v.  Forkner.  117  Ind.  and  alx)ut  a  theatre  that  can  be  de- 
176;  19  N.  E.  Rep.  753.  The  court  tached  without  injury  to  the  build- 
cites  and  comments  on  Pierce  v.  ing.  such  as  switchboard  to  connect 
George.  108  Mass.  78,  where  a  sub-  a  dynamo  to  the  permanent  wiring 
.sequent  mortgage  of  the  real  estate  of  such  building,  chandeliers,  and 
took  precedence  of  a  previous  chat-  electric  signs,  are  chattels  and  not 
tel  mortgage  of  machinery  attached  part  of  the  realty  in  New  York, 
to  the  building;  and  also  cites  Hunt  New  York  Life  In^.  Co.  v.  Allison, 
v.  Bay  State  Iron  Co.,  97  Mass.  279.  107  Fed.  Rep.  179;  46  C.  C.  A.  229. 
See  Lnited  States  v.  New  Orleans  The  retention  of  the  title  to  a  port- 
R.  R.,  12  Wall.  362,  and  Fosdick  able  furnace  by  the  vendor  gives 
V.  Schall,  99  U.  S.  235.  "  The  dis-  him  an  implied  right  to  retake  it  if 
tinction,"  said  the  court  in  Binkley  not  paid  for.  even  after  it  is  set  up ; 
V.  Forkner,  supra,  "between  chat-  so  that  it  is  not  included  in  a  prior 
tels  whose  completeness  and  iden-  mortgage  on  the  realty.  DuflTus  v. 
tlty  as  separate  and  distinct  ar-  Howard  Furnace  Co.,  8  N.  Y.  App. 
tides    may    be    preserved    notwith-  Div.  567;  40  N.  Y.  Supp.  925. 


632 


OIL    AND    GAS. 


tlieir  application.  Thus,  it  lias  been  held  that  gas  chandeliers 
in  a  house,  attached  by  screws  to  pipes  conveying  the  gas  are  not 
part  of  the  reakj.  '*  Gas  fixtures,"  said  the  court,  "  whether  in 
the  form  of  chandeliers  suspended  from  the  ceiling  at  the  top  of 
the  room,  or  projecting  as  brackets  from  the  perpendicular  walls, 
though  attached  to  pipes  by  screws  and  made  tight  by  cement, 
are  in  the  nature  of  furniture,  and  do  not  lose  their  character  as 
chattels  by  reason  of  the  manner  in  which  they  are  affixed."  ^ 
Accordingly,  therefore,  to  the  greater  number  of  authorities,  gas 
fixtures,  chandeliers,  gaseliers,  candelabra,  sconces,  and  other 
instruments  used  as  substitutes  for  oil  lamps  and  candles  in 
lighting  a  house,  and  gas  stoves,  will  not  pass  to  the  vendee  of 
the  realty  as  a  part  of  it.  They  are  regarded  as  personal  prop- 
erty, and  do  not  pass  by  the  ordinary  deed  of  conveyance.^*' 


0  Towne  v.  Fiske,  127  Mass.  125; 
34  Am.  Rep.  353.  So  it  was  held, 
because  of  the  character  of  the  ar- 
ticle, that  an  action  of  tort  would 
not  lie  for  their  conversion.  Guth- 
rie V.  Jones,   108  Mass.  191. 

10  Rogers  v.  Crow,  40  Mo.  91;  93 
Am.  Dec.  299;  Shaw  v.  Lenke,  1 
Daly  487.  In  this  last  case  it  is 
said  that,  "  the  adjustment  of  the 
bracket  or  chandelier  to  the  gas 
pipe  is  not  such  an  actual  annexa- 
tion to  the  freehold  as  is  contem- 
plated by  law."  Kirchman  v.  Lapp, 
19  N.  Y.  Supp.  831;  Vaughen  v. 
Haldeman,  33  Pa.  St.  522;  75  Am. 
Dec.  622;  Jarechi  v.  Philharmonic 
Society,  79  Pa.  St.  403;  21  Am. 
Rep.  78;  Penn.  Mut.  Life  Ins.  Co. 
V.  Thackara  (Pa.),  10  Wkly.  W.  N. 
C.  104;  11  Wkly.  W.  N.  C.  391;  13 
Reporter  731 ;  McLean  v.  Palmer,  2 
Kulp  (Pa.)  349  (oil  lamps)  ;  Wil- 
son V.  Freeman,  7  Wkly.  W.  N.  C. 
(Pa.)  33  (chandeliers  in  a  saloon^; 
Voorhis  v.  Freeman,  2  Watts,  and 
b.  116;  37  Am.  Dec.  490;  Heysham 
V.  Dettre,  89  Pa.  St.  506   (heaters). 

In  England  a  statute  authorized 
a   gas   company   to   let   for.  hire   to 


the  user  of  gas  "  any  fittings  for 
the  gas,"  and  declared  that  such 
"  fittings "  should  not  be  the  sub- 
ject of  distress  when  let  to  his  ten- 
ant. This  statute  was  held  to  cover 
a  gas  stove,  used  for  heating  pur- 
poses only,  and  rented  to  a  tenant. 
Gaslight  and  Coke  Co.  v.  Hardy, 
17  Q.  B.  Div.  619;  56  L.  J.  Q.  B. 
168;  55  L.  T.  585;  36  W.  R.  50;  51 
J.  P.  6.  And  the  same  rule  was 
adopted  where  a  stove  was  used  for 
cooking,  "  containing  besides  the 
burners  and  the  chamber  in  which 
the  gas  was  consumed,  other  cham- 
bers together  with  grates,  hot  plates 
and  arrangements  for  the  reception 
of  cooking  utensils."  Gaslight  and 
Coke  Co.  V.  Herbert  Smith,  3  Times 
Law  Rep.  15.  Gaslight  and  Coke 
Co.  V.  Hardy,  56  L.  J.  Q.  B.  168. 

Meters  put  upon  premises  by  a 
gas  company,  and  attached  to  the 
gas  pipes  by  solder,  and  by  means 
of  those  pipes  to  the  company's 
main,  belong  to  the  company.  Re- 
gina  V.  Inhabitants  of  Lee,  L.  R.  1 
Q.  B.  241;  35  L.  J.  M.  C.  105;  12 
Jur.  (N.  S.)  225;  13  L.  T.  (N.  S.) 
704;   14  W.  R.  311.     City  removing 


FIXTURES.  633 

Gas  eliaiideliers  so  far  partake  of  the  nature  of  personal  prop- 
erty, that  a  thief  who  severs  and  immediately  carries  them  away 
may  be  convicted  of  larceny/^ 

§569.     Judicial  sale  of  premises. 

The  rule  as  between  vendor  and  vendee  is  applicable  to  an 
instance  where  the  premises  are  sold  under  judicial  or  other 
like  process ;  and  the  right  of  the  former  owner  and  purchaser 
at  such  sale  are  determined  exactly  the  same  as  if  the  former 
owner  had  himself  sold  the  premises  to  the  purchaser  under  the 
enforced  sale.^"  And  this  is  true  even  though  the  sale  is  one 
conducted  under  the  provisions  of  a  mortgage.^^ 

§570.     Gas  fixtures  may  pass  to  vendee. 

As  intimated  in  a  previous  section,  the  ordinary  gas  fixtures 
may  pass  to  the  vendee.  In  a  l^ew  York  case  it  is  said  that 
they  may  pass  as  a  part  of  the  realty,  if  the  intent  that  they  shall 
so  pass  is  shown  by  acts  and  declarations  of  the  vendor.^*  But 
some  of  the  cases  go  farther  than  this.  Thus  in  England  it  was 
said:  "  The  gaseliers  (chandeliers)  are  a  part  of  the  gas  pipes, 
and,  to  use  a  legal  expression,  they  take  their  nature  and  are 

water  meter  after  building  had  been  sonal  property.  Nisbet  v.  Mitchell- 
prepared  for  its  use.     Ladd  v.  Bos-  Innes,  7  R.  575. 

ton,   170  Mass.  332;   49  N.  E.  Rep.  12  Vaughen   v.   Haldeman,   33   Pa. 

627;    40   L.    R.    A.    171.     Gas    puri-  St.    522;    75   Am.   Dec.   622;    Towne 

fiers,    gas    holders,    pumps    and   ex-  v.    Fiske,    127    Mass.    125;    34    Am. 

hausters  are  taxed   or  rated  as  fix-  Rep.   353;   McNally  v.  Connolly,  70 

tures    in    England.     Regina    v.    Lee,  Cal.  3;    11   Pac.  Rep.  320. 

swpra.  13  Montague    v.     Dent,     10     Rich. 

11  Smith     V.     Commonwealth,     14  135;   67  Am.  Dec.  572. 

Bush.    (Ky.)    31;   29  Am.  Rep.  402.  In   Pennsylvania   shares   of   stock 

For   instance,   where   gas   fixtures  in  an  oil  company,  an  oil  lease  and 

are  held  to  be  realty,  see  Ex  parte  an   interest   in  the  fixtures  thereon 

Acton,    4    L.    T.    (N.    S.)    261;    Ex  cannot    be    attached,    under    Act    of 

parte  Wilson,  2  Mont,  and  Ayr.  61 ;  July   12,    1842,   for   wages.     Dawson 

4  Dea.   and  Chit.   143;   4  L.  J.    (N.  v.   Kirby,   6   Pa.   Dist.   Rep.    13;    27 

S.)    Bank.    24;    and    Central    Trust,  Pitts.  L.  ,J.    (N.  S.)    234. 

etc.,  Co.  V.  Cincinnati,  etc.,  Co.,  26  i*  Funk  v.  Brigaldi.   4  Daly  359; 

Wkly.  Law  Bull.  149;   11  Ohio  Dec.  Central    Trust,    etc.,    Co.    v.    Cincin- 

Rep.    348.  nati.   etc.,  Co.,  26  ^Ykly.  Law  Bull. 

In  Scotland  gas  fixtures   are  per-  149;    10    Ohio   Dec.   Rep.    348. 


634  on.    AND    GAS. 

included  in  the  fixtures  which  go  with  the  house  under  the  lease. 
They  are  as  much  a  part  of  the  gas  pipes  as  the  mill  stones  are 
part  of  the  mill.  Although  the  gaseliers  may  be  unscrewed  and 
taken  off  Avithout  injuring  the  freehold,  they  are  necessary  to  the 
enjoyment  of  the  gas  pipes,  Avhich  are  of  no  practical  use  when 
separated  from  them."  ^"^  And  in  America  are  cases  holding 
gas  fixtures  to  he  a  part  of  the  realty.  Thus  in  ^ew  Jersey  it 
was  said:  ''Gas  burners  are  fixtures.  They  are  in  no  sense 
furniture,  but  are  mere  accessories  to  the  mill.  The  apparatus 
for  the  manufacture  of  gas  (called  a  generator)  is  situated  in 
a  pit  made  expressly  for  it  in  a  small  building  built  for  it  a 
short  distance  from  the  main  building.  It  is  connected  Avith  a 
gas  pump  in  the  building,  and  the  pipes  are  attached  to  the 
beams  and  girders  by  hooks,  and  in  some  places  pass  through 
the  holes  in  the  side  walls,  borad  for  the  purpose.  The  genera- 
tor and  its  appurtenances,  and  the  pipes  are.  fixtures."  ^^  What 
is  said  about  "  gas  burners  "  may  he  regarded  as  a  dictum;  but 
it  is  evident  that  the  court  Avould  have  held  them  to  be  a  part 
of  the  realty  if  there  had  been  a  controversy  over  them.  In 
Kentucky  it  is  held  that  chandeliers,  affixed  by  means  of  screws 
to  iron  pipes  let  into  the  walls  of  the  house,  in  order  to  conduct 
gas  to  the  burners,  even  though  they  could  be  moved  Avithout 
injury  to  the  Avails  or  ceilings,  and  Avhich  formed  an  ornamental 
addition  to  the  house,  belong  to  the  vendee  as  between  him  and 
the  vendor,  being  a  part  of  the  real  estate.^'  And  in  ]Srew  York 
it  Avas  held  that  gas  logs  may  be  fixtures  if  the  intention  of  the 
OAAmer  was  to  make  them  such ;  and  that  the  intention  Avas  to  be 
determined  from  such  oAvner's  acts  and  conduct,  and  from  all 
the  circumstances  of  the  transaction.^®      So  in  the  same  State  it 

15  Sewell   V.  Angerstein,   18  L.  T.  it  Johnson    v.    Wiseman,    4    Met. 

(N.   S.)    300.     See  also  Hutchinson  (Ky. )    357;   83  Am.  Dec.  475. 

V.  Kay,  23  Beav.  413.  isCosgrove  v.  Troescher,  02  App. 

inKeeler  v.  Keeler,  31   N.  J.  Eq.  Div.    (N.  Y.)    123;    70  N.  Y.   Supp. 

ISl.  191.     In  Hays  v.  Doane.  11  N.  764.     Same  rule  applied  to  gas  H\-- 

.1     Eq.    84,    it    is   held    that   a    gas-  tures.  Daniels  v.  Detwiler,  14  Mont, 

ometer   and   apparatus   for  generat-  Co.   L.   Rep.   58;    15   Lane.  L.   Rev, 

ing  gas,  are  movable  property,  and  165. 
not    fixtures,    as    between    landlord 
and    tenant. 


FIXTURES.  635 

was  held  that  gas  pipes  passed  to  the  vendee  of  a  store,  although 
they  were  put  in  by  the  tenant  of  the  vendor,  who  had  a  right  to 
remove  them  as  against  his  landlord/**  In  Ohio  it  was  held  by 
the  nisi  pi-ius  court  that  where  chandeliers  and  gas  brackets  were 
affixed  to  a  building  in  a  manner  to  indicate  an  intention  on 
the  owner's  part  to  make  them  a  part  of  such  building,  they 
were  fixtures  and  passed  to  the  vendee.^"  So  in  Pennsylvania  a 
gas  machine,  a  part  of  a  suburban  dwelling  house,  put  in  at  the 
time  the  house  was  built,  and  connected  with  it  by  underground 
pipes  running  through  the  foundation  walls  and  joining  in  the 
house  permanent  machinery ;  and  to  this  machinery  was  connect- 
ed the  ordinary  gas  pipes  of  a  house,  was  held  to  be  subject  to 
a  mechanic's  lien,  and  therefore  part  of  the  realty."^  But  it 
has  also  been  held  in  that  State  that  gas  fixtures  do  not  pass  to 
the  vendee  of  the  realty,  in  the  absence  of  an  intent  that  they 
shall  be  included  in  the  sale.^^  In  California  a  hotel  was  con- 
veyed "  Avith  the  appurtenances  thereunto  belonging."  This 
conveyance  was  made  in  pursuance  of  a  written  agi'eement  pro- 
viding that  the  vendor  might  remove  his  furniture,  carpets  and 
pictures,  but  none  of  the  "  permanent  fixtures  and  appurte- 
nances." Under  these  facts  the  court  considered  that  there  was 
a  special  agreement  concerning  the  gas  fixtures  and  fittings,  the 
kitchen  range,  water  filter,  tanks  and  mosquito  screens,  to  the 
effect  that  they  were  to  go  with  the  real  estate.'^ 

19  Smyth  V.  Sturges,  108  N.  Y.  22  Daniels  v.  Detwiler,  15  Lane. 
495;  15  N.  E.  Eep.  544;  affirming  L.  Eev.  165;  14  Mont.  Co.  L.  Rep. 
30  Hun  89.  58. 

20  Central  Trust,  etc.,  Co.  v.  Cin-  23  Fratt  v.  Whittier,  58  Cal.  126; 
cinnati,    etc.,    Co.,    26    Wkly.    Law  41    Am.    Rep.    251. 

Bull.   149;    10  Ohio  Dec.   Rep.   348.  Of  course,  a  special  agreement  su- 

80     in     Pennsylvania.     Daniels     v.  persedes   the  general   rule  and   con- 

Detwiler,  supra.  trols   the   right   to   remove   gas   fix- 

21  Light  Co.  V.  Gill,  14  Pa.  Co.  tures.  Wall  v.  Hinds,  4  Gray  256; 
Ct.  R.  6.  64    Am.    Dee.    64. 


(536  OIL    AND    GAS. 

AKTICLE  2. 
TRADE  FIXTUEES. 

§571.  Between  mortgagor  and  mortgagee. 

§572.  Gas  pipes  in  houses. 

§573.  Landlord  and  tenant. 

§574.  When  tenant  must  remove. 

§571.     Between  mortgagor  and  mortgagee. 

The  rule  between  mortgagor  and  mortgagee  is  not  sensibly 
different  from  the  rule  between  vendor  and  vendee.  It  is  there- 
fore held  that  gas  fixtures  and  gas  ranges  are  personal  property 
as  against  the  mortgagee  of  the  realty,  and  can  be  removed  by 

the  mortgagor."* 

tr 

§572.     Gas  pipes  in  houses. 

Gas  pipes  fixed  within  the  walls  of  houses,  and  also  those  lead- 
ing from  the  premises '  in  the  street  to  the  house,  are  clearly  fix- 
tures, and  pass  with  a  conveyance  of  the  house  or  premises."^ 
Thus  where  a  water  pipe  w^as  laid  across  adjoining  land  to  sup- 
ply a  house  with  water,  it  was  held  that  it  passed  with  a  con- 
veyance of  the  house. '^     But  pipes  may  be  placed  in  a  house 

24  Cosgrove  v.  Troescher,  62  App.  nace,    where    vendor     retained    the 

Div.    (X.  Y.)    123;    70  N.  Y.  Supp.  title);    McKeage    v.    Hanover    Fire 

764;   Rogers  v.  Prattville  Mfg.  Co.,  Ins.  Co.,  81  N.  Y.  38;  37  Am.  Rep. 

81   Ala.   483;    1   So.  Rep.   643    (ma-  471;    Capehart  v.   Foster,   61   Minn. 

chinery)  ;    New  York   Life  Ins.   Co.  132;    63   N.   W.   Rep.   257;    52  Am. 

V.   Allison,    107   Fed.    Rep.    179;    46  St.   Rep.   582    (also  an   electric   an- 

C.   C.   A.  229    (dynamos  and  engine  nunciator,   but    not   a   steam   radia- 

for   driving  the  dynamos);    Vail  v.  tor;     criticising    National    Bank    v. 

Weaver,    132   Pa.    St.   363;    19    Atl.  North,    160    Pa.    St.    303;    28    Atl. 

Rep.      138       (electrical      machinery  Rep.    394). 

placed  in  the  building  for  the  pur-  25  Smyth    v.    Sturges,    108    N.    Y. 

pose    of    supplying    light,    after    the  495;    15  N.   E.   Rep.    544;    affirming 

mortgage  was  executed,  with  no  ^n-  30    Hun    89 ;     Ex    parte    Wilson,    2 

tent  to  make  it  a  part  of  the  real-  Mont,  and  Ayr.  61;  4  Dec.  and  Chit, 

ty)  ;  Keeler  v.  Keeler,  31  N.  J.  Eq.  143;   4   L.   J.    (N.   S.)    Bank  24. 

ISl.    191;    Duffus   V.   Howard    Fur-  20  philbrick    v.    Ewing,    97    Mass. 

nace   Co.,   8   N.   Y.   App.   Div.   5G7 ;  133. 
40  N.  Y.   Supp.  925    (portable  fur- 


TRADE    FIXTURES.  637 

under  such  circumstances  as  to  show  an  intent  that  they  should 
remain  jDersonal  property.  Such  was  the  case  where  the  owner 
of  a  store  room  contracted  wnth  an  electric  lighting  company  to 
put  electric  wires  and  fixtures  in  his  store  room,  and  agreed  to 
use  the  light  for  one  year  and  pay  for  it  "  in  conformity  with 
the  regulations  endorsed  "  on  the  written  and  signed  contract. 
One  of  these  regulations  was  that  tlie  comj)any  should  have  ac- 
cess to  the  premises  for  the  removal  of  the  lamps  or  wire. 
Channels  were  dug  in  the  plastering  of  the  walls  of  the  rooms, 
the  wires  placed  in  them,  fastening  them  with  staples,  and  then 
covered  over  by  filling  such  channels  with  mortar,  restoring  the 
Avails  as  nearly  as  possible  to  their  former  condition.  It  Avas 
held  that  the  ownership  of  the  wires  Avas  a  question  of  the  in- 
tention of  the  parties,  and  was  for  the  jury."^ 

§573.     Landlord  and  tenant. 

The  right  of  a  tenant  to  remove  fixtures  from  the  rented 
premises  practically  stands  on  a  contract  betAveen  him  and  his 
landlord,  usually  an  implied  one,  but  not  infrequently  an  ex- 
press one.  The  laAV  does  not  presume  that  fixtures  placed  by 
the  tenant  on  the  rented  premises,  in  order  to  enable  him  to  use 
or  enjoy  them,  and  Avhich  can  be  remoA^ed  Avithout  injury  to 
such  premises,  were  intended  either  by  him  or  his  landlord  to 
become  a  part  of  the  realty,  and  to  remain  after  the  tenancy 
had  expired.  If  there  is  an  express  contract  concerning  their 
removal,  that  Avill  control ;  but  in  the  absence  of  such  a  contract, 
the  law  raises  an  implied  contract  that  the  tenant  can  remove 
them  if  he  perform  the  act  of  remoA^al  at  a  proper  time  and  in 
a  proper  manner.  Usually  he  must  remoA^e  them  during  the 
term  of  the  tenancy.  "  A  great  part  of  the  gas  fixtures,  such  as 
the  gasometers  and  the  apparatus  for  generating  gas,  as  between 
landlord  and  tenant,  are  movable  property.     They  would,  it  is 

27  Harrisburg,    etc.,   Co.   v.   Good-  fixtures    as    between    landlord    and 

man,  129  Pa.  St.  206;   19  Atl.  Eep.  tenant.     Gas    mains.     Poughkeepsie 

844.     See    Wall    v.    Hinds,    4    Gray  Gas    Co.    v.    Citizens'    Gas    Co.,    20 

256,    04    Am.    Dec.    64,    where    gas  Hun  214. 
pipes    were    held    to    be    removable 


638  OI"L    AND    GAS. 

true,  pass  to  the  heirs-at-law  with  the  inheritance,  or  between 
grantor  and  grantee,  as  fixtures  to  the  real  estate ;  but  as  between 
landlord  and  tenant,  the  latter  has  a  right  to  remove  them  during 
the  term."  ''^  Such  fixtures  are  regarded  as  his  personal  prop- 
erty during  the  term  of  the  lease,  especially  if  they  are  trade 
fixtures."''  Thus  gas  pipes  passing  from  the  cellar  through  the 
fioors  and  partitions,  retained  in  their  places  by  Inetal  bands,  are 
such  fixtures  as  a  tenant  may  remove,  even  though  some  of 
them  pass  through  wooden  ornaments  of  the  ceilings,  which  are 
cut  away  for  their  removal. ^°  If  an  incoming  tenant  purchase 
from  his  landlord  the  fixtures  upon  the  demised  premises,  they 
of  course  become  personal  property,  and  he  may  remove  them.^^ 

8574.     When  tenant  must  remove. 

One  line  of  authority  expressly  limits  the  right  of  the  tenant 
to  remove  the  fixtures  to  the  term  of  his  lease,  giving  him  the 
right  to  remove  them  at  any  time  during  the  lease,  or  while  he 
continues  tenant ;  but  after  the  expiration  of  such  lease  and  the 
surrender  of  the  premises  to  the  landlord,  he  cannot  enter  on 
such  premises  to  remove  the  fijctures.  And  the  reason  of  this 
rule  is  said  to  be  that  when  he  quits  the  premises,  leaving  his  fix- 
tures behind  him,  it  will  be  presumed  that  he  intended  to  aban- 

28  Hays   V.    Doane,    11    N.   J.    Eq.  in   as   good   condition   as   it   was  at 

84;   Elliot  v.  Bishop,  10  Exch.  512;  the    beginning    of    the    lease.     Ross 

Childs  V.   Hurd,    32   W.   Va.   66;    9  v.    Campbell,    9    Colo.   App.    38;    47 

S.  E.  Rep.  362;  Seeger  v.  Pettit,  77  Pac.  Rep.  465. 

Pa:  St.  437;    Guthrie  v.  Jones,    108  That    a    tenant    may    remove,    see 

Mass.   191.  Wilde  v.  Waters,   16  C.  B.  637;   24 

20  Kile    V.    Giebner,    114    Pa.    St.  L.    J.    C.    P.    193;     1    Jur.     (N.    S.) 

381;     7    Atl.    Rep.     154;     Ex    parte  1021;    Elliott    v.    Bishop,    24    L.    J. 

Morrow,   1   Lowell's  Dec.  386;    2  N.  Exch.,    p.    39;    42    L.    J.    Exch.,    p. 

B.  R.   (2d  ed.)   665.  229;   10  Exch.  496. 

•foWall    V.    Hinds,    4    Gray    256;  si  Ryall  y.  Rolle,   1  Atk.,   p.   175. 

64   Am.   Dee.    64.     This    is   particu-  Generally,  that  a  tenant  may  re- 

larly  true  if  there  be  an  agreement  move   gas   fixtures   he   puts   in,    see 

to  that  effect.  *■  Elliott  v.  Bishop.  10  Exch.  496;  24 

A  tenant  may  remove  a  tile  floor  L.  J.  Exch.,  p.   39;   42  Id.,  p.  229; 

and     an     electric     light     apparatus  D'Eyncourt  v,  Gregory,  L.  R.  3  Eq. 

placed    in    a    building    for    business  382. 
purposes,    if   he   leave   the   building 


TRADE    FIXTURES.  639 

don  them.^"  But  the  rule  that  he  must  remove  them  during  the 
tenancy  may  be  modified  by  an  express  agreement.  Thus  where 
property  by  an  express  agreement  between  the  tenant  and  land- 
lord was  made  personal  property,  it  was  held  that  it  could  not 
be  contended  that  it  was  the  tenant's  fixtures,  and  therefore 
movable,  only  during  the  tenancy.^^  So  where  it  was  agreed 
when  the  lease  was  surrendered,  that  the  landlord  should  sell 
the  fixtures  for  the  tenant's  benefit,  and  at  the  request  of  the 
landlord  the  tenant  left  them  on  the  premises,  it  was  held  that 
the  latter  had  not  lost  his  right  to  them,  and  that  the  former  was 
liable  for  their  conversion.^*  So  acceptance  of  a  new  lease  by 
the  tenant  is  not  a  waiver  of  his  right  to  the  trade  fixtures  he 
has  placed  upon  the  premises,  although  there  be  no  agreement 
with  respect  to  them,  unless  such  new  lease  in  clear  terms  cover 
the  fixtures  upon  the  premises  leased.^^  But  some  autliorities 
extend  the  rule  farther  than  those  just  cited  would  indicate. 
Thus  it  was  decided  in  J^ew  York  that  trade  fixtures  did  not 
cease  to  be  the  tenant's  property  by  reason  of  the  mere  fact  that 
he  did  not  remove  them  during  his  term ;  and  that  he  could  "  re- 
move them  after  his  term  expired  without  subjecting  himself 
to  any  damages  for  such  removal,  even  though  he  be  liable  to  an 
action  for  trespass  for  an  entry  on  the  premises  demised."  It 
was  also  held  that  the  tenant  could  mortgage  them  by 
a  chattel  mortgage,  and  that  they  could  be  levied  upon 
with  an  execution  against  him.^*'  In  Illinois  it  was  held 
that  the  tenant  had  a  reasonable  time  within  which  to 
remove  trade  fixtures,  and  what  was  a  reasonable  time 
was  a  proper  question  for  the  jury,  under  the  instructions  of 

32Childs  V.  Hurd,  32  W.  Va.  66;  236;   25  N.   E.   Rep.    362.   reversing 

9    S.    E.    Eep.    362;    Friedlander    v.  4  N.  Y.  Supp.  694 ;  East  Sugar  Loaf 

idder,  30  Neb.  783;  47  N.  W.  Rep.  Coal  Co.  v.  Wilbur,  5  Pa.  Dist.  Rep. 

83;  Wall  v.  Hinds,  4  Gray  256;  64  202. 

Am.  Doc.  64;  Hays  v.  Doane,  11  N.  35  Second  National  Bank  v.  O.  E. 

J.  Eq.  84.  Merrill  Co.,  69  Wis.  501;   34  X.  W. 

s'-Lake  Superior  Ship  Canal,  etc..  Rep.     514;      Wright     v.     McDonell. 

Co.    V.    McCann.    86    Mich.    106;    48  88  Tex.  140;  30  S.  W.  Rep.  907. 

N.  W.  Rep.  692.  ?g  Lawrence    v.    Kemp,     1    Duer. 

34  Thorn  v.  Sutherland.  123  X.  Y.  363. 


640  OIL    AND    GAS. 

the  court."''  This  is  undoubtedly  true  where  a  forfeiture  of  the 
lease  takes  place ;  and  if  the  tenant  is  denied  the  right  after  the 
forfeiture  to  remove  them,  he  may  bring  an  action  therefor, 
especially  if  the  lease  contain  an  agreement  giving  him  the  right 
to  make  such  removal.^^ 

ARTICLE  3. 

OIL  AND  GAS  LEASE  FIXTUEES. 

§575.  Coal  and  mineral  leases. 

§576.  Oil  and  gas  lease  fixtures. 

§577.  Conveyance  or  mortgage  of  fixtures. 

§578.  Special  contract  controls. 

§579.  Gas  and  oil  pipe  lines. 

§575.     Coal  and  mineral  leases. 

The  right  of  a  lessee  in  an  oil  or  gas  lease  does  not  differ  from 
the  right  of  a  tenant,  in  an  ordinary  agi'eement  for  the  renting 
of  premises  for  trade  purposes.  There  is  no  difference,  taking 
into  consideration  the  character  of  the  fixtures,  in  this  respect, 
between  a  lease  to  bore  for  oil  or  gas  and  one  to  dig  for  coal 
or  other  minerals.  In  the  case  of  a  mere  parol  license  to  mine 
for  coal,  and  the  license  is  revoked,  the  licensee  may  remove  his 
fixtures  within  a  reasonable  time ;  and  there  is  no  reason  why  the 
same  is  not  applicable  to  an  oil  or  gas  license  or  lease.^^  Thus 
a  steam  engine,  boilers,  and  pumps,  sunk  into  a  ledge  of  rock  in 
order  to  get  a  level,  and  covered  by  a  shed  for  shelter,  used  in 
working  a  mine,  is  a  trade  fixture,  and  may  be  removed  by  the 
tenant,  unless  the  right  to  remove  it  is  controlled  by  an  agi'ee- 
ment, or  by  some  local  usage.***     The  rule  extends  not  only  to 

"~  Berger  v.  Hoerner,  36  111.  App.  Springfield,    etc.,    Co.    v.    Cole,    130 

360;    Nigro    v.    Hatch     (Ariz.).    11  Mo.   1;    31    S.  W.   Rep.   922. 

Pac.  Rep.  177.  4o  Merritt    v.    Judd,    14    Cal.    60; 

38  Sattler  v.  Opperman,  30  Pittsb.  Wake  v.  Hall.  7   Q.  B.  Div.  295;   8 

Leg.  J.    CN.  S.)    205.     See  also  Pot-  App.  Cas.   195;   Hewitt,  etc.,  Co.  v. 

ter  V.  Gilbert,   177  Pa.  St.   159;   35  Watertown,   etc.,   Co.,    65    HI.   App. 

Atl.  Rep.  507;   35  L.  R.   A.  580.  IS.S. 

39Desloge  v.  Pearce,  38  Mo.  588; 


OIL    AND    GAS    LEASE    FIXTURES.  641 

a  steam  engine  and  machinery  connected  therewith,  but  to  all 
fixtures  or  appliances  used  for  the  purpose  of  hoisting  coal  from 
the  mine.  These  remain  the  property  of  the  lessee.'*^  Thus  a 
sale  of  a  seller's  interest  in  a  ''  colliery  "  includes  "  all  the 
movable  property  belonging  to  and  used  at  the  place  in  mining- 
coal  "  ;  and  it  is  not  error  to  so  instruct  the  jury,  and  add  "  that 
the  word  '  colliery  '  is  a  collective  compound  including  many 
things,  and  is  not  limited  to  the  lease  and  fixtures  of  a  tunnel, 
drift,  shaft,  slope,  or  vein  from  which  coal  is  mined."*'  Where 
a  lease  was  made  for  the  purpose  of  mining  iron  ore,  and  it  was 
provided  that  the  lessee  would,  at  its  termination,  peaceably  sur- 
render the  premises,  "  and  other  improvements  and  erections 
that  may  be  thereon  —  engine,  boilers,  machinery,  tools,  imple- 
ments, and  other  movable  ]Tersonal  chattels  excepted ;  it  was 
held  that  this  agreement  made  engines  and  boilers  personal 
property  as  between  the  lessor  and  an  execution  creditor  of  the 
lessee,  and  that  they  could  not  be  treated  as  trade  fixtures.^^ 
Where  A.  entered  into  an  agreement  with  B.  to  put  in  machinery 
to  bore  a  salt  well  on  the  latter's  land,  in  consideration  of  which 
he  was  to  have  a  share  of  the  property  and  business,  but  never 
sunk  the  well,  and  B.  sold  and  conveyed  the  lands  to  C. ;  it  was 
hold  that  the  machinery  did  not  pass  by  the  conveyance ;  for  the 
reason  that  the  machinery  was  put  on  the  premises  for  a  tem- 
porary purpose,  to  sink  a  well,  and  as  it  would  be  removed  with- 
out injury  to  the  freehold,  it  did  not  become  realty,  not  being 
so  intended  or  especially  adapted  for  permanent  use  as  a  part  of 
the  freehold.'**      So  a  sale  of  a  coal  mine  does  not  include,  im- 

41  Dobschuetz  v.  Holliday,  82  111.  ^3  Lake  Superior  Co.  v.  McCann, 
371;  Hewitt,  etc.,  Co.  v.  C4eneral  86  Mich.  106;  48  N.  W.  Rep.  692. 
Electric  Co.,  61  111.  App.  168;  Au-  A  mining  flume  running  along  the 
denried  v.  Woodward,  4  Dutch.  (X.  bank  of  a  river  to  a  mine  was  held 
J.)  265;  Davis  v.  Moss,  38  Pa.  St.  not  exempt  from  taxation  under  a 
306;  Heffner  v. '  Lewis,  73  Pa.  St.  statute  exempting  mining  claims. 
302  (a  railroad  to  the  mine)  ;  Wil-  "  It  is  not  affixed  to  the  claim  so  as 
liams'  Appeal,  1  Monaghan  (Pa.),  to  become  a  part  of  it.  It  is  rather 
274;  ]Montooth  v.  Gamble.  123  Pa.  to  be  regarded  as  machinery,  or  as 
St.  240;  16  Atl.  Rep.  .504  (houses)  ;  apparatvis  useful  in  mining."  Hart 
Ritchie  v.  McAllister,  14  Pa.  Co.  Ct.  v.  Plum,  14  Cal.   148. 

Rep.    267     (railroad).  44  Bewick    v.    Fletcher,    41    Mich. 

42  Carev  v.  Bright.  58  Pa.  St.  70.       625. 


642  OIL    AND    GAS. 

plements,  tools,  and  movable  articles  of  the  mine  ;'*^  but  it  does 
include  the  machinery  and  fixtures  of  the  mine,  the  trouble 
generally  beino,'  to  determine  what  is  and  what  is  not  a  fixture/" 


to 


§576.     Oil  and  gas  lease  fixtures. 

A  lessee  of  land,  to  bore  for  oil,  wdio  does  not  find  any  oil  has 
a  right  to  remove  not  only  the  machinery  used  in  sinking  the 
well  but  also  the  casings  in  the  wells,  unless  there  be  a  contract 
to  the  contrary  concerning  their  removal.*^  And  a  levy  of  an 
execution  upon  "  all  right,  title  and  interest  of  the  defendant 
[lessee]  of,  in  and  to  a  certain  lease-hold  estate  situate,"  etc., 
"  together  with  the  oil  wells,  engines,  boilers,  engine  houses, 
derricks,"  etc.,  etc.,  "  and  all  the  machinery  and  fixtures  be- 
longing to  said  well  and  lease,"  covers  the  fixtures  of  the  lease- 
hold.*'^ Where  a  lease  of  sround  was  given  for  three  years  and 
as  much  longer  as  oil  or  gas  was  found  in  paying  quantities, 
Avith  the  right  to  remove  all  fixtures  "  at  any  time,"  it  was  held 
that  the  fixtures  must  be  removed  within  a  reasonable  time  after 
the  expiration  of  the  three  years'  period,  or  within  a  reasonable 
time  after  the  time  it  was  determined  that  neither  oil  nor  gas 
could  be  secured  in  paying  quantities ;  and  that  the  phrase  '"  at 
any  time"  could  not  be  stretched  so  as  to  include  an  unreasonable 
length  of  time  after  the  lease  had  in  fact  terminated.  "  The 
lease  was  for  a  fixed  period,"  said  the  court,  "  to  be  extended  to 
an  indefinite  period,  and  the  extension  to  depend  upon  wdiat  the 
future  might  develop.  The  right  to  enter  at  any  time,  and  the 
right  to  remove  machinery  at  any  time,  was  predicated  on  that 
part  of  the  term  that  was  uncertain,  that  is,  after  three  years  the 

45  Fisher  v.  Dixon,   12  CI.  and  F.  set  on  rock  work,  with  the  ordinary 

312.  connections    with    the    engine,    were 

40  Dudley  v.  \Yarde,  Amb.   li;5.  fixtures.     Roseville  Alta  :Mining-  Co. 

In    Colorado    a    statute    provides  v.  Iowa  Gulch  Mining  Co.,  15  Colo, 

that   the  terms   "land"   and   "real  29;   24  Pac.  Rep.   920. 

estate "  shall   embrace  claims.     Un-  47  Siller   v.    Globe   Window   Glass 

der  this   statute  it  is  held  tl»at  an  Co..  21  Ohio  C.  C.  284;  10  Ohio  Cir. 

engine    placed    in    an    engine   house  Dee.   784. 

on  a  framo  bolted  down  to  timbers  48Titusville  Novelty  Iron  Works' 

sunk     in     tlio     ground     and     earth  Appeal,  77  Pa.  St.  103. 
tamped   around    them,   and   a    boiler 


OIL    AXD    GAS    LEASE    FIXTURES.  643 

lessee  had  the  right  at  any  time  to  enter  and  drill  additional 
wells,  if  oil  or  gas  "was  being  produced  in  paying  quantities; 
and  had  the  right,  although  the  three  years  had  passed,  to  re- 
move the  machinery  and  fixtures  after  or  when  the  well  would 
cease  to  produce  oil  or  gas  in  paying  quantities.  If  this  con- 
struction is  correct,  then  the  rule  of  law  as  to  removal  of  fix- 
tures, as  when  it  depends  upon  a  contingency,  and  that  is,  that 
the  removal  mast  be  made  within  a  reasonable  time ;  or  in  other 
words,  the  law  in  such  cases  allows  the  tenant  a  reasonable  time 
for  the  removal  of  the  fixtures.  Here  the  lessees,  if  oil  or  gas 
lias  been  found  in  paying  quantities,  would  have  had  a  reasona- 
ble time  within  which  to  draw  their  casing  and  remove  their 
derricks  after  it  had  become  apparent  that  the  operation  of  the 
wells  was  no  longer  profitable,  let  this  be  soon  or  long  after  the 
expiration  of  three  years ;  at  any  time  when  they  thought  it 
would  no  longer  pay  to  operate  their  wells  which  had  been  pro- 
ducing oil  or  gas  in  paying  quantities,  they  had  a  right  to  re- 
move the  fixtures  connected  with  such  wells.  Under  the  facts 
as  we  have  them  in  this  case,  however,  oj^ierations  ceased  on  this 
lease  in  Aj>ril,  1887;  a  dry  hole  was  found,  nothing  was  done 
between  the  completion  of  this  well  and  the  time  when  the  lease 
expired  in  Xovember,  1888,  and  after  that  four  years  were 
allowed  to  expire  before  an  attempt  to  remove  these  fixtures 
was  made.  In  our  opinion,  this  was  too  late.  If,  under  the 
words  '  at  any  time  '  the  lessee  could  take  four  years  after  the 
expiration  of  the  lease  to  remove  his  fixtures,  he  could  as  well 
take  twenty  years.  To  say  that  the  lessor  could  prevent  this 
by  giving  notice  that  the  fixtures  must  be  removed  within  a  cer- 
tain time,  is  to  read  something  into  the  contract  that  is  not 
there."  *""*  Contingencies  may  arise  that  will  not  require  the 
lessee  to  remove  his  fixtures  at  the  expiration  of  the  lease,  or 
even  within  what  would  have  otherwise  been  a  reasonable  time. 
Thus  where  there  arose  a  dispute  between  the  lessor  and  lessee 
as  to  when  the  lease  expired  and  the  controversy  was  taken  into 
the  courts,  and  was  decided  against  the  lessee,  it  was  held  that 
the  lessee  could  remove  the  fixtures  at  the  termination  of  the 

49Shellar  v.  Shivers,   171   Pa.   St.  569;    33   Atl.  Rep.   95. 


644  OIL    AND    GAS 

suit,  although  the  lease  had  long  before  exjDired ;  and  if  the  lessor 
had  refused  to  permit  the  lessee  to  so  remove  them,  he  was 
liable  in  damages.^**  A  covenant  on  the  part  of  the  lessee  to  de- 
velop gas  or  oil  land  leased  is  separate  and  apart  from  an  agree- 
ment of  the  lessor  that  the  lessee  might  remove  the  fixtures  at 
the  expiration  of  the  lease  or  within  a  reasonable  time  there- 
after ;  and  if  the  lessor  seize  the  fixtures  for  the  reason  that  the 
lessee  has  failed  to  keep  his  covenant,  he  will  be  liable  in 
damages.''^ 

§577.     Conveyance  or  mortgage  of  fixtures. 

A  conveyance  of  the  lands  whereon  are  gas  or  oil  wells  owned 
and  worked  by  the  owners  of  the  land  will  carry  with  it  those 
fixtures  attached  to  the  freehold  necessarily  used  in  such  work ; 
and  so  a  conveyance  of  the*[easehold  interest  by  the  lessee  will 
also  carry  such  fixtures,  unless  there  be  an  agreement  to  the 
contrary.^"  But  it  will  not  carry  oil  in  tanks  on  the  leased 
premises. ^^  Tanks  for  holding  the  oil,  placed  by  the  owner  of 
the  land  upon  a  foundation  of  earth  and  lumber,  are  presumed 
to  be  such  permanent  accessions  to  the  land  as  will  subject  the 
land  to  a  mechanic's  lien,  and  of  course  pass  with  a  conveyance 
thereof."*  In  Pennsylvania  an  Act  of  the  legislature  ^"  provides 
that  it  shall  "  be  lawful  for  every  lessee  for  a  term  of  years  of 
any  colliery,  mining  land,  manufactory,  or  other  premises,  to 

50  Sattler  v.  Apperman,  .30  Pitts.  Thomas,  25  Ore.  539 ;  36  Pac.  Rep. 
L.  J.   (N.  S.)   205.     See  also  Wright       036. 

V.' McDonnell,  88  Tex.  140;  30  S.  VV.  52  Roseville    Alta    Mining    Co.    v. 

Rep.    907.  Iowa    Gulch    Mining   Co.,    15    Colo. 

51  A  steam  engine  in  a  coal  mine  29;  24  Pac.  Rep.  920;  Ritchie  v. 
for  the  use  of  the  tenant,  and  re-  McAllister,  14  Pa.  Co.  Ct.  Rep.  267. 
movable  without  injury  to  the  mine,  s.'.  JMcQuire  v.  Wright,  18  W.  Va. 
is   not   a   fixture.     Hewitt,   etc.,   Co.  507. 

V.  Watertown  Steam  Engine  Co.,  si  Parker  Land,  etc.,  Co.  v.  Red- 
Go  111.  App.  153.  dick,  18  Ind.  App.  616;  47  N.  E. 
A  derrick  erected  by  a  tenant  in  Rep.  848.  Contra,  Seider's  and 
a  quarry,  by  placing  a  post  upright  International,  etc.,  Co.  v.  Lewis,  7 
in  a  socket  in  the  ground,  is  a  trade  Pa.  Dist.  Rep.  278;  21  Pa.  Co.  Ct. 
fixtui'o.    and    is    not    subject    to    a  Rep.  80. 

mechanic's       lien.      Iloneyman       v.  55  Act   of   April   27,    1855;    P.    L. 

369. 


OIL    AXD    GAS    LEASE    EIXTUEES.  645 

mortgage  his  or  her  lease  or  term  in  the  demised  premises,  with 
all  buildings  thereon,  to  the  lessee  belong [ing]  and  thereunto 
appurtenant,  with  the  same  effect  as  to  the  lessee's  interest  and 
title,  as  in  the  case  of  mortgaging  a  freehold  interest  and  title 
iis  to  lien,  notice,  evidence  and  priority  of  payment  " ;  but 
the  mortgage  and  lease  must  be  placed  of  record  in  the  proper 
oounty,  and  the  mortgage  can  in  no  wise  interfere  with  the  land- 
lord's right,  priority  or  remedy  for  rent.^*^  After  the  passage 
of  the  Act  it  was  held  that  in  a  mortgage  of  the  leasehold,  in- 
cluding "  all  machinery  and  fixtures  thereon  —  one  boiler,  one 
engine,  two  tanks,  etc. — ■  and  all  and  singular  the  appurtenances 
thereunto  belonging,"  was  included  a  leather  belting;  and  that 
it  was  competent  to  show  by  parol  evidence  that  the  belting  was 
actually  on  the  leasehold  premises  wdien  the  mortgage  was  ex- 
ecuted, and  was  embraced  therein.^"  The  word  "  fixture  "  as 
used  in  this  Act  has  been  held  to  include  mine  cars  and  all  such 
machinery  and  appliances  as  are  essential  to  the  operation  of  a 
colliery,  but  not  prop-timber.^*  The  mortgage  of  an  electric 
lighting  plant,  including  boilers,  engines  and  dynamo,  "  with  all 
the  appurtenances  thereunto  belonging,"  includes  masts  erected 
in  the  street  and  wires  strung  thereon,  along  which  the  electric 
current  was  conducted  to  electric  lamps.^"  Without  the  aid  of 
a  statute,  a  tenant  may  so  mortgage  his  leasehold  as  to  cover  the 
fixtures  upon  it.*'''     And  he  may  bring  under  a  mortgage  of  the 

56  This  act  was  construed  to  ap-  sold  "   to    the    second    grantee    "  all 

ply  to  oil  land  or  gas  leases.     Gill  the  buildings,  tanks,  derricks,  pipes, 

V.    Weston,    110    Pa.    St.    312;       12  pipe    lines,    fixtures,    and    all    other 

Atl.  Rep.  921.  personal   property  whatsoever  "   sit- 

5T  Gill  V.  Weston,  supra.  uated     upon     any     portion     of     the 

58  Baker   v.  Atherton,    15  Pa.   Co.  ranch,  it  was  held  not  to  be  a  mere 

Ct.  Rep.   471.  conveyance  of  these  as  chattels,  but 

so  Fechet    v.    Drake     (Ariz.),     12  it   gave    the    right    to    occupy   suffi- 

Pac.  Rep.  694.  cient  land  for  the  use  of  the   prop- 

W'here  the  owner  of  a  ranch  con-  erty  for  the  purpose  and  in  the  way 

veyed  a   part   of   it,  excepting  "  all  it    had    theretofore    been    operated, 

oils,      petroleum,      asphaltum.      and  Dietz    v.    ^Mission    Transfer    Co.,    9.5 

other  minerals,"  and  then  conveyed  Cal.   92;    .30  Pac.   Rep.   380. 

to  another  the  remaining  part  of  the  co  Lawrence    v.    Kemps,     1    Duer. 

ranch,  reserving  the  minerals ;    and  363. 

the     first     grantee     "granted     and  In  Bainbridge  on  Mines  and  Min- 


(j4:Q 


OIL    AND    GAS. 


existing  machinery  and  plant  of  a  leasehold,  after  acquired  ma- 
chinery or  fixtures  placed  upon  the  premises  during  the  con- 
tinuance of  the  security ;  ^^  but  the  terms  of  the  mortgage  must 
expressly  include  such  after  acquired  property,  for  a  mere 
mortgage  of  existing  property  will  reach  after  acquired  prop- 
erty.'' 


erals  (edition  of  1900,  5th),  263, 
the  English  law  with  respect  to 
mining  fixtures  is  stated  as  fol- 
lows: "And  regarding  the  remov- 
ability of  fixtures  properly  so 
called,  and  their  sale  or  devolution 
separately  from  the  land  or  mine, 
the  following  points  appear  to  be 
established,  namely  —  Firstly,  as  be- 
tween an  executor  or  administrator 
and  the  devisee  or  heirs  —  whether 
the  deceased  was  the  owner  in  fee 
of  the  land  or  of  the  mine,  the  de- 
visee or  heir  will,  as  a  general  rule, 
be  entitled  to  the  machinery  also, 
which  has  been  annexed  to  the  free- 
hold, and  which  has  become  a  part 
of  the  inheritance  —  as  e.  g.,  in  the 
case  of  a  salt  mine  or  salt  works 
(Lawton  v.  Salmon,  1  H.  B.  259)  ; 
and  the  special  circumstances  must 
be  shown  to  alter  that  rule  (Low- 
ther  V.  Cavendish,  1  Eden  99;  Wood 
V.  Gaynon,  1  Amb.  395;  Lushing- 
ton  V.  Sewell,  1  Sim.  435)  ;  also, 
where  the  corpus  of  any  machinery 
or  fixture  belongs  to  the  heir  or 
devisee,  he  is  entitled  to  all  the 
parts  capable  of  being  used  in  a  de- 
tached state,  if  they  really  belong 
to  it.  (Fisher  v.  Dixon,  12  CI.  and 
F.  312).  But,  secondly,  as  between 
the  tenant  for  life  and  the  person 
entitled  in  remainder  or  reversion 
—  the  executor  of  the  tenant  foi^lif^ 
will,  as  a  general  rule,  be  entitled 
fo  the  machinery  and  fixtures.  Thus, 
\\liere  a  fire  engine  for  working  a 
collier  had  been  set  up  by  the  tenant 
for   life;    and   it   was  proved  to   be 


customary  to  remove  such  works; 
but  it  appeared  also  that  the  engine 
could  not  be  removed  without  tear- 
ing up  the  soil  and  destroying  the 
brick  work  —  Lord  Hardwicke  de- 
cided tiuit  the  engine  was  part  of 
the  personal  estate  of  the  late  ten- 
ant for  life,  and  went  to  his  execu- 
tor (Lawton  v.  Lawton,  3  Atk.  13)  ; 
and  he  applied  the  same  rule  in  a 
subsequent  case  to  a  deceased  ten- 
ant in  tail  (Dudley  v.  Warde,  Amb. 
113;  Lawton  v.  Salmon,  1  H.  Black 
259).  And,  thirdly,  as  between  a 
mining  lessee  and  his  lessor,  a  still 
greater  liberality  in  favor  of  the 
lessee  or  of  his  executor  prevails 
(Grymes  v.  Boweren,  6  Bing.  439) 
subject  only  to  this  condition,  name- 
ly, tliat.  the  lessee  or  his  executor 
nnist  exercise  his  right  to  remove 
the  fixtures  during  the  continuance 
of  the  term  or  during  what  has 
been  termed  the  excrescence  of  the 
tei'm  (Heap  v.  Barton,  12  C.  B. 
274;  Penton  v.  Robart  2  East  88) 
—  scil.,  because  he  will  otherwise  be 
considered  to  have  relinquished  his 
claim  (IMinshull  v.  Lloyd.  2  M.  and 
^^^  459 ;  Weston  v.  Woodcock,  7 
M.  and  W.  14)."  See  also  Hewitt 
v.  ^^'atertown  Steam  Engine  Co., 
05  111.  App.  153  (steam  engine  in 
coal   mining   for  use  of  tenant). 

■•  Holyrod  v.  Marshall,  2  GifT. 
382;  2  DeG.  F.  and  J.  596;  3  L.  J. 
Ch.  055;  30  L.  J.  Ch.  385;  3  L.  J. 
Ch.    193. 

"-Beeve  v.  Whitmore,  33  L.  ,1. 
Ch.  63. 


OIL    AXD    GAS    LEASE    FIXTURES.  647 

^578.     Special  contract  controls. 

Special  agreements  relating  to  fixtures  contained  in  leases, 
especially  in  mining  leases  —  often  settle  the  rights  of  the 
])arties  with  reference  to  machinery  and  fixtures.  Thus  where 
a  lease  of  land  and  salt  mines  gave  the  lessee  the  right  to  erect 
a  warehouse,  build  quays,  salt  pits  and  other  works,  reserving 
a  certain  rent  for  every  salt  pan  then  or  thereafter  erected  by 
the  lessee;  and  the  lessee  covenanted  to  leave  all  the  buildings, 
quays  and  salt  worhs  in  good  repairs  —  it  was  held  that  he  could 
not  remove  any  salt  pans  he  had  built. *^^  ^Yhere  a  lessee  cove- 
nanted to  leave  all  the  ''  fixed  materials,"  except  the  salt  pans 
and  other  movable  articles  used  at  the  salt  works;  and  he  as- 
sigiied  the  lease ;  and  in  a  renewal  of  the  lease  the  assignee 
covenanted  to  give  up  possession  of  the  premises,  with  all  im- 
provements, cisterns,  doors  and  other  fixtures  and  appurte- 
nances, stipulating  for  the  right  to  take  away  the  salt  pans  and 
other  articles  used,  it  was  held  that  he  had  only  the  right  to 
take  such  fixtures  as  could  properly  be  called  tenant's  fixtures.*'* 
But  where  a  lessee  of  a  coal  mine  and  iron  works  covenanted  to 
yield,  at  the  end  of  his  term,  all  "  ways  and  roads  "  in  good 
repairs,  and  fit  for  immediate  future  use ;  it  was  held  that  the 
agreement  did  not  cover  tram  plates  and  wooden  sleepers  of 
the  railroad  laid  down  by  the  lessee,  which  had  been  seized 
under  an  execution  against  him,  but  that  it  did  cover  rails  and 
sleepers  in  place  at  the  time  of  the  lease,  it  being  the  intention 
of  the  lessor  and  lessee  to  bind  only  those  in  existence  at  the 

As  against  a  trustee  in  bankrupt-  the  fixtures  before  he  can  claim 
cy,  the  mortgagee  of  a  mine,  with  them.  Mather  v.  Fraser,  supra ; 
engines  and  other  fixtures,  is  in  gen-  Regbie  v.  Fenwick,  L.  R.  8  Ch.  App. 
eral,  entitled  to  all  the  machinery  1075,  note;  Ex  parte  Daglish,  In  re 
fixed  to  the  freehold  (Mather  v.  Wilde.  L.  R.  8  Ch.  App.  1072;  Ex 
Frazer,  2  Kay  and  J.  536;  25  L.  J.  parte  Barclay.  In  re  .Joyce,  L.  R.  0 
Ch.  361;  Whitmore  v.  Empson,  23  Ch.  App.  576;  Batchelor  v.  Yates. 
Beav.  313;  26  L.  J.  Ch.  364);  but  38  Ch.  Div.  112. 
not  to  the  movable  fixtures,  which  63  Earl  of  Mansfield  v.  Black- 
vest  in  the  trustee.  Whitmore  v.  burne,  3  Scott  (X.  S.)  820;  6  Bing. 
Empson,    supra.     Usually,   however,  X.  C.  427. 

the  mortgage  must  contain  a  clause  C4  Summer  v.  Bromilow,  34  L.  J. 

authorizing  the  mortgagee  to  sever  Q.   B.   130. 


us 


OIL    AND    GAS. 


time  of  the  lease  and  not  those  thereafter  acquired ;  and  that  it 
was  not  the  intention  to  hind  the  lessee  to  continue  for  a  long 
term  of  years  the  repairs  of  railroads  which  might  have  become 
useless.  It  was  considered  that  the  terms  of  the  covenant  were 
satisfied  by  the  railroad  being  left  in  a  proper  state  for  the  re- 
laying of  rails  by  the  lessor,''^ 

§579.     Gas  and  oil  pipe  lines. 

We  have  already  seen  that  a  water  pipe  laid  across  an  ad- 
joining lot  to  supply  a  house  with  water  passes  with  a  convey- 


c5  Beaufort  (Duke)  v.  Bates,  3 
DeG.  F.  and  J.  381;  31  L.  J.  Cli. 
481;  Bird  v.  Crabb,  30  L.  J.  Ex. 
318. 

So  if  a  tenant  purchase  the  fiX(| 
tures  of  his  landlord,  he  may  re- 
move them.  Ryall  v.  Rolle,  1  Atk., 
p.  175.  See  also  Handforth  v.  Jack- 
son, 150  Mass.  149;  22  N.  E.  Rep. 
6.34. 

The  owner  of  mineral  land  leased 
it  for  the  purpose  of  mining,  the 
lease  providing  that  all  timbers 
placed  in  the  shafts  should  be  re- 
garded as  fixtures;  and  in  case  of  a 
surrender  of  the  lease  the  lessee 
would  permit  a  re-entry  before  the 
actual  surrender  to  install  pump- 
ing machinery,  and  that  the  lessor 
should  have  the  right  to  buy  all 
mining  machinery  and  buildings 
erected  during  the  term,  and  if  he 
did  not  purchase  them,  the  lessee 
should  have  sixty  days  after  the 
termination  of  the  lease  within 
which  to  make  a  renewal  of  them. 
Another  clause  provided  for  a  leas- 
ing by  the  lessor  of  the  premises, 
machinery  and  appurtenances.  It 
was  held  that  the  machinery '•and 
appliances  on  the  land  were  trade 
fixtures,  placed  there  by  the  lessee, 
did  not  at  once  become  a  part  of 
the  freehold,  but  that  the  lessee  had 


such  an  interest  in  them  that  he 
could  place  a  chattel  mortgage 
upon ;  yet  upon  the  lessor  recover- 
ing possession  of  the  land  by  sum- 
mary proceedings  for  non-payment 
of  rent,  before  the  removal  of  such 
trade  fixtures  and  without  an  asser- 
tion of  a  right  by  the  lessee  to  re- 
move them  or  his  mortgagee,  they 
became  the  lessor's  property  as  a 
jjart  of  the  freehold,  and  the  mort- 
gagee could  not  thereafter  remove 
them.  Massachusetts  National  Bank 
V.  Shinn.  18  N.  Y.  App.  Div.  276; 
46  X.  Y.  Supp.  329. 

One  who  erects  a  building  on  an- 
other's land  by  license  may  remove 
it,  if  its  removal  be  practicable  and 
works  no  serious  injury  to  the  land, 
on  the  termination  of  the  license. 
Ingalls  V.  St.  Paul,  M.  and  M.  Ry. 
Co.,  39  Minn.  479;  40  N.  W.  Rep. 
524. 

If  one  in  possession  of  land,  un- 
der contract  of  purchase,  volun- 
tarily erects  a  house  thereon,  with- 
out either  an  express  or  implied 
agreement  with  the  land  owner  that 
it  shall  remain  personal  property, 
it  becomes  part  of  the  realty,  and 
belongs  to  the  owner  of  the  soil. 
Kingsley  v.  McFarland.  82  Me.  231; 
19   Atl.   Rep.   442. 


OIL    AND    GAS    LEASE    FIXTURES.  649 

ance  of  the  house.""  A  gas  compam'  which  has  condemned  a 
right  of  way  for  its  line  may  enter  and  remove  its  pipe  line 
when  the  supply  of  gas  has  failed  ;  hut  it  must  remove  them  at 
a  time  and  in  a  manner  least  harmful  to  the  land  owner,  and 
subject  to  the  payment  of  a  compensation  for  any  actual  injury 
to  growing  grain  or  grass.  Should  the  field  be  a  meadow,  then 
it  must  pay  for  all  substantial  injuries  to  the  turf  beyond  the 
mere  opening  and  filling  of  the  trench  in  which  the  pipe  lies."' 
The  right  to  remove  them  is  made  to  hinge  on  the  failure  of 
gas.""*  Pipe  lines  of  artificial  and  natural  gas  companies  laid  in 
the  street,  with  the  consent  of  the  municipality,  remain  the  per- 
sonal property  of  the  company.""  But  where  the  pipe  line  was 
Iniried  two  and  a  half  to  three  feet  on  land  of  persons  from 
whom  the  pipe  line  company  had,  by  deed,  acquired  a  right  of 
way,  and  was  used  to  carry  crude  petroleum,  it  was  held  that  it 
was  ''  real  estate  "  within  the  meaning  of  the  I^ew  Jersey  tax 
law.'"  A  gas  company  that  lays  a  pipe  line  through  lands  with- 
out permission  of  the  owner  is  not  entitled  to  maintain  a  suit 
against  the  land  owner  to  enjoin  him  from  removing  it;  for 
by  its  act  of  placing  it  in  the  soil  he  became  the  owner  of  it,  and 
the  pipe  line  cannot  be  treated  as  a  fixture.^^ 

C6  Philbrick    V.    Ewing.    97    Mass.  C.   466;    Regina   v.   West  Middlesex 

133.  W.  W.  Co.,   1  E.  and  E.  71G;   Shef- 

«i- Clements    v.    Philadelphia    Co.,  field  United  Gas  Co.  v.  Sheffield,  4 

184  Pa.  St.  28;   38  Atl.  Rep.   1090;  B.  and  S.   13.5. 

28  Pitts.  L.  J.    (N.  S.)   344;  41   W.  eo  Memphis  Gaslight  Co.  v.  State, 

N.  C.  321;   39  L.  R.  A.  532.  6  Coldw.    (Tenn.)    310. 

OS  In    England    gas    pipes    in    the  "o  State  v.  Berry,  52  N.  J.  L.  308; 

ground    are   taxed    or    rated    to    the  19    Atl.    Rep.    665. 
proprietors  in  the  parish  where  they  In  Texas  poles,  wires  and   lampa 

are  laid,  although  the  ownership  of  of     an     electric     lighting     company 

the  land  itself  may  be  in  other  in-  erected    in    the    street    for    lighting 

dividuals.     It  is  held  that  the  pro-  purposes,   are  real   property.    Keat- 

prictors  of  the  pipes  are  in  the  pos-  ing,  etc.,   Co.  v.  Marshall,  etc.,  Co., 

session    of    the    space    they    occupy.  74  Tex.  605 ;   12  So.  W.  Rep.  489. 
Regina    v.    Rockdale    W.    W.    Co.,    1  7i  Windfall,  etc..   Co.    v.   Terwilli- 

M.  and  S.  634;  Regina  v.  Birming-  ger,    152   Ind.   364;    53   N.   E.    Rep. 

ham  Gas  Co.,  1  B.  and  C.  506;  Re-  284. 
gina  V.  Brighton  Gas  Co.,  5  B.  and 


CHAPTER  XXVIII. 

NUISANCES. 

§580.  Scope  of  chapter. 

§581.  Pollution  of  well  or  spring  by  artificial  gas. 

§582.  Pollution  of  running  streams. 

§583.  Pollution  of  subterranean  waters. 

§584.  Damages  occasioned  by  storing  or  bringing  oil  on  land. 

§585.  Gases  destroying  trees  and  vegetation. 

§586.  Noisome  smells.  ^ 

§587.  Odors  from  operation  of  oil  wells  and  works. 

§588.  Other  disagreeable  odors  in  neighborhood. 

§589.  Degree  of  annoyance. —  Question  for  jury. 

§590.  Gas  or  oil  well  near  house  or  building. 

§591.  Business  authorized  by  government  no  defence. 

§592.  Duty  of  owner  to  prevent  continuance  of  damages. 

§593.  Evidence. 

§594.  Injunction. 

§595.  Enjoining  erection  of  gas  plant. 

§596.  Former  recovery  a  bar. 

§597.  Indictment  for  nuisance. 

§598.  Waste  of  natural  gas  or  oil. 

§580.     Scope  of  chapter. 

This  chapter  is  limited  to  instances  affecting  gas  and  oil, 
without  any  general  discussion  of  the  principles  applicable  to 
ISTuisances,  except  as  they  may  incidentally  be  noticed  in  con- 
sidering particular  instances. 

§581.     Pollution  of  well  or  spring  by  artificial  g-as. 

Most  cases  of  nuisances  with  reference  to  the  manufacture 
and  supply  of  gas  have  arisen  out  of  the  pollution  of  wells  or 
springs.  Tf  a  company  permit  gas  to  escape  from  its  reservoir 
or  pipes,  and  it  percolates  through  the  soil  and  enters  a  well  or 

650 


NUISANCES.  651 

spring,  injuring  the  quality  of  the  water,  or  poUuting  the  water 
before  it  enters  such  well  or  spring,  the  gas  company  will  be 
liable  to  the  owner  for  the  damages  thus  done,  and  the  fact  that 
other  causes  contributed  to  the  injury  of  the  water  will  not  bar 
an  action  for  damages,  though  it  may  be  shown  to  affect  their 
amount/  So  if  the  wastings  from  the  refuse  of  its  gas  worlcs 
enter  the  well  of  an  adjoining  property  owner,  rendering  it  unfit 
for  household  purposes  or  stock  it  will  be  liable,  such  pollution 
being  considered  a  nuisance."  The  company  is  liable  where  the 
rains  wash  the  deleterious  substances  from  the  refuse  of  the 
works  and  the  water  runs  along  and  enters  the  well  or  spring  at 
its  mouth,  corrupting  the  well  or  spring  water,  the  same  as  if  it 
had  soaked  through  the  soil.''  A  city  operating  gas  works  is 
liable  for  the  pollution  of  a  well  the  same  as  a  private  corpora- 
tion or  an  individual  would  be  if  it  had  l^een  operating  such 
works.*  A  stockholder  in  the  company  injured  by  its  act 
may  maintain  a  suit  to  abate  the  nuisance,  even  to  enjoin 
the  continuation  of  the  pollution.^  A  lessee  may  also  maintain 
an  action  for  the  pollution  of  a  well  upon  the  demised  prem- 
ises ;  *^  but  his  right  of  action  is  limited  to  recover  for  the 
injury  to  his  possessory  interest,  while  the  landlord  must  bring 
the  action  for  any  injury  to  the  reversion. '^     Directors  of  a  gas 

1  Sherman    v.    Fall    River    Works  228.     In   this   case  the   court  said: 

Co.,    5    Allen   213;    Columbus    Gas-  "A    municipal    corporation    owning 

light   Co.   V.   Freeland,    12   Ohio   St.  and   occupying  property    for   public 

.392;    Millington  v.   Griffiths,   30   L.  uses  is  as  much  svibject  as  a  private 

T.  65;  23  Gas  J.  215;   Ottawa  Gas-  person  to  the  rule,  sic  utere  tiio  ut 

light    Co.    V.    Graham,    28    111.    73;  alienum  non  laedas.     The  city  is  as 

Brown  v.  Illius,  25  Conn.  583;  Kin-  much  bound  as  an  individual  owner 

naird   v.   Standard   Oil   Co.,   89   Ky.  of  a   lot,  to  find   an   outlet  for  the 

468;   12  S.  W.  Eep.  937;  7  L.  R.  A.  water  on  it,  without  encroaching  on 

451.  his  neighbor." 

-  Pensacola  Gas  Co.  v.  Pebley,  25  s  Hendrie  v.  Lea  Bridge,  etc.,  Co., 

Fla.   381;   5  So.  Rep.  593;   Hendrie  21  Gas  J.  949,  989. 

V.  Lea   Bridge,  etc.,  Co.,  21   Gas   J.  ^'S  Hendrie  v.  Lea  Bridge,  etc.,  Co., 

949,  989.  21  Gas  J.  949,  989. 

3  Brown  v.  Illius,  27  Conn.  84 ;  6  Sherman  v.  Fall  River  Iron 
Pottstown  Gas  Co.  v.  Murphy.  39  Works,  2  Allen  524.  See  Chapman 
Pa.  St.  257;  Grange  v.  Pately,  etc.,  v.  South,  etc.,  Co.,  61  Gas  J.  359, 
Co.,   14  Gas  J.  309.  415,  460. 

4  Shuter  v.  Philadelphia,  3  Phila. 


652  OIL    AT^^D    GAS, 

company  have  been  held  personally  liable  for  damages  caused 
to  a  well  by  noxious  substances  escaping  from  the  works  of  the 
company  of  which  they  were  such  officers/  Where  a  statute 
rendered  a  gas  company*liable  to  a  penalty  which  should  "  suffer 
any  wastings,  etc.,  to  be  conveyed  into  any  well,"  this  was  held 
to  render  it  liable  though  the  well  contaminated  had  been  dis- 
used by  the  owner  for  several  years.  It  was  also  held  that  the 
facts  of  non-user  and  the  closing  of  the  well  because  of  its  having 
been  polluted,  even  though  coupled  with  the  acceptance  by  the 
owner  of  the  use  of  substituted  wells  of  the  company,  was  not 
such  an  abandonment  of  the  former  as  to  alter  its  character  and 
make  it  no  longer  a  well,  nor  could  a  license  to  pollute  it  be 
inferred  from  such  a  state  of  facts.^  The  word  "  suffer  "  as 
above  quoted  was  applied  to  an  instance  of  this  kind,  and  the 
company  held  liable.  In  1854  a  gas  company  erected  a  tank  for 
gas  about  one  hundred  and  thirty  feet  from  the  plaintiff's  well, 
the  site  being  selected  by  the  company's  engineer,  and  the  tank 
erected  on  solid  sandstone  with  proper  materials.  The  gas  com- 
pany knew  mines  in  the  neighborhood  had  been  worked,  but  did 
not  know  that  they  had  been  worked  under  or  near  any  part  of 
their  land.  In  1838  there  had  been  workings  under  half  of  the 
company's  land,  and  from  1848  to  1855  these  workings  had  been 
brought  to  within  one  hundred  and  eighty  feet  of  the  company's 
tank.  In  consequence  of  these  facts  the  bottom  of  the  gas  tank 
cracked,  and  the  wastings  in  it  flowed  out  and  through  the  soil  to 
the  plaintiff's  well.  It  was  held  that  the  gas  company  had  suf- 
fered  the  wastings  to  flow  into  the  plaintiff's  well,  and  were 
liable  within  the  meaning  of  the  statute  quoted.® 

7Millington  v.  Griffiths,  etc.,  Co.,  10  Jur.    (N.   S.)    172;   9  L.  T.    (N. 

30   L.   T.   65;    23   Gas   J.   215.     See  S.)   694;   12  W.  R.  212. 

Rex  V.  Medley,  6  C.  and  P.  292.  Where   the   defense  was  that   the 

sMillington  v.  Griffiths,  30  L.  T.  plaintiff  did  not  use  the  water  be- 

65;    23   Gas   J.    215.  fore    it   was    befouled    for    domestic 

9  Hipkins    v.     Birmingham,     etc.,  purposes,     but     for     washing     and 

Co.,  5  H.  and  N.   74 ;   6  H.  and  ^.  flushing  purposes,  and  for  such  pur- 

250;    9    Gas    J.    63.    778;    30   L.   J.  poses  it  was  as  fit  as  if  it  had  not 

Exch.   60;    9   W.   R.   168.     See   also  been    fouled,   the   judge    trying    the 

Parry  v.  Croydon  Gas  Co.,  15  C.  B.  case  said:      "A   man   is  entitled  to 

(N.  S.)   568;  11  C.  B.   (N.  S.)   578;  have  the  water  for  use   in  his  own 


XUISAXCES. 


653 


§582.     Pollution  of  running  streams. 

Questions  of  the  pollution  of  running  streams  raise  more  dif- 
ficult questions  than  those  relating  to  the  pollution  of  wells  or 
springs.  It  is  often  difficult  to  reconcile  the  right  of  an  upper 
riparian  land  o^\mer  to  the  use  of  the  Avater  passing  in  a  stream 
through  his  estate,  in  the  development  of  his  land,  with  the  right 
of  a  lower  owner  to  receive  the  stream  free  from  pollution.  But 
a  distinction  must  be  drawn  between  the  use  and  abuse  of  a 
running  stream ;  as  for  instance,  w^here  it  has  become  polluted 
by  a  usage  of  a  part  of  the  water  which  is  returned  to  the  stream 
in  a  polluted  state,  and  where  deleterious  substances  are  thrown 
into  it  without  any  other  use  of  it  being  made.  Thus  where 
manufacturers  of  gas  threw  coal  tar  and  other  noxious  sub- 
stances on  their  gas  works  premises  near  a  stream  and  they 
percolated  through  the  soil,  into  an  adjoining  river  and  rendered 
its  water  impure,  it  was  held  that  the  lower  riparian  land  owner 


house,  even  though  for  the  purpose 
of  washing  or  for  the  purpose  of 
flushing  his  drains,  uncontaminated 
by  a  disgusting  smell  of  gas." 
Batchellcr  v.  Tunbridge  Wells  Gas 
Co.,  6.5  J.  P.  680;  84  L.  T.  765. 

A  license  to  take  water  from  a 
well  gives  the  licensee  a  riglit  of 
action  for  the  disturbance  of  his 
easement,  but  not  for  the  well's 
pollution.  Ottawa  Gaslight  Co.  v. 
Thompson.    39    111.    598. 

For  similar  cases,  see  Merrifield 
V.  Lombard.  13  Allen  16;  Richmond 
Mfg.  Co.  V.  Atlantic  DeLain  Co., 
10  R.  I.  106;  Stockport  W.  W.  Co. 
V.  Potter,  7  H.  and  X.  160;  7  Jur. 
(N.  S.)  880;  31  L.  J.  Exch.  9; 
Pennington  v.  Brinsop  Hall  Co..  L. 
R.  5  Ch.  Div.  769;  46  L.  J.  Cli. 
773.  The  owner  of  a  well  polluted 
is  not  bound  to  cement  it  in  order 
to  keep  out  the  odors  of  gas  or 
drainage  from  the  gas  works.  Co- 
lumbus, etc.,  Co.  V.  Freeland,  12 
Ohio  St.   392. 


In  Ottawa  Gaslight  and  Coke  Co. 
V.  Graham,  28  111.  73,  it  was  held, 
in  an  action  to  recover  damages  for 
pollution  of  a  well,  that  in  ascer- 
taining the  true  measure  of  dam- 
ages the  jury  must  consider  all  tae 
circumstances  connected  with  the 
injury,  including  the  cost  of  secur- 
ing a  sufficient  quantity  of  water 
equally  pure  with  that  supplied 
from  the  well  before  its  injury, 
the  cost  of  keeping  the  conductors 
and  other  machinery  for  so  doing 
in  repair,  and  the  depreciation  of 
the  value  of  the  property  by  reason 
of  the  erection  of  the  gas  works, 
but  if  the  property  would  sell  for 
the  same  amount,  independent  of 
a  rise  in  similar  property,  then 
there  would  be  no  loss,  but  if  it 
would  not,  then  the  difference  would 
be  the  damages  sustained.  See  also 
Ottawa  Gaslight  and  Coke  Co.  v. 
Graham,  35  111.  346. 


654  OIL    AND    GAS. 

was  entitled  to  have  the  water  in  a  pure  condition ;  and  that  the 
gas  company  was  liable."  Pollutions  arising  from  the  working 
of  coal  mines  furnish  very  good  instances  of  the  first  class  of 
instances  we  have  referred  to  above.  Thus  where  a  mine  owner 
used  the  water  of  a  stream  running  through  or  by  his  premises 
to  wash  iron  ore  taken  from  his  mine,  without  which  right  to  so 
use  the  water  the  mine  would  be  valueless,  the  stream  being  the 
only  available  water,  and  after  using  the  water  taken  from  the 
stream  returned  it,  there  being  no  other  outlet  for  it,  he  resort- 
ing to  the  customary  and  best  means  of  purifying  it  before 
permitting  it  to  flow  back  into  the  stream,  it  was  held  that  the 
interest  of  the  public  and  of  an  important  industry  was  such 
that  the  general  rule  with  reference  to  the  pollution  of  streams 
must  be  modified  so  as  not  to  destroy  that  interest  and  such 
industry.  ''  But  there  is  a  limit,"  said  the  court,  "  to  this  duty 
to  yield,  to  this  claim  and  rignt  to  expect  and  demand.  The 
water  course  must  not  be  diverted  from  its  channel,  or  so  dimin- 
ished in  volume,  or  so  corrupted  and  polluted,  as  practically 
to  destroy,  or  greatly  to  impair  its  value  to  the  lower  riparian 
owner."  ^^  In  a  Pennsylvania  case  it  appeared  that  a  coal  mine 
owner,  in  the  operation  of  his  mine,  pumped  the  water  from  a 
stream  and  returned  it  in  such  a  state  as  to  render  the  entire 
stream  useless  for  domestic  purposes ;  and  it  was  held  that  the 
lower  owner  was  without  a  remedy,  his  rights  ex  necessitate  giv- 

loCarhart     v.     Auburn     Gaslight  merer,  144  Pa.  St.  509;  22  Atl.  Rep. 

Co.,  22   Barb.   297;    Rex  v.   Medley,  970;    Elder   v.   Lykens   Valley    Coal 

6  C.  and  P.  292    (indictment)  ;  Rob-  Co.,   157  Pa.   St.   490;    27  Atl.  Rep. 

inson  v.  Coal  Co.,  50  Cal.  460;  Peo-  545;  Hindson  v.  Markle,  171  Pa.  St. 

pie  V.  Gold  Run,   etc.,   Co.,   66  Cal.  138;    33  Atl.   Rep.   74. 
138;  4  Pac.  Rep.  1152.  A  city,  under  a   statutory   power 

11  Tennessee,    etc.,    Co.    v.    Hamil-  to    sue    to    restrain    a    nuisance    to 

ton,  100  Ala.  252;  14  So.  Rep.  167;  water    courses    connected    with    its 

Bear  River,  etc.,  Co.  v.  N.  Y.  Min-  water    works,    cannot,    as    a    public 

ing   Co.,   8   Cal.   327;    Satterfield  v.  agent,     sue     to     restrain     a     public 

Rowan,   83    Ga.    187;    9   S.   E.   Rep.  nuisance,    such    statute    merely    au- 

677;     Edwards    v.    Allouez    Mining  thorizing  it  to  sue  as  an  individual 

Co.,  38  Mich.  40;   Nelson  v.  0'Ne»l,  might  for  the  protection  of  its  pri- 

1  Mont.  284 ;  Columbus,  etc.,  Co.  v.  vate  property.     Newark,  etc.,  Board 

Tucker,   48   Ohio   St.   41;    26   N.   E.  v.    Passaic,    45    N.    J.    Eq.    393;    18 

Rep.    630;    Brown   v.    Torrence.    88  Atl.   Rep.    106. 
Pa.     St.     186;    Gallagher    v.    Kern- 


NUISANCES.  655 

ing  way  to  the  interests  of  the  community,  in  order  to  permit 
the  development  of  the  natural  resources  of  the  country.  In 
passing  on  the  case  the  court  said :  "  It  will  be  observed  that 
the  defendants  have  done  nothing  to  change  the  character  of 
the  water,  or  to  diminish  its  purity,  save  what  results  from  the 
natural  use  and  enjoyment  of  their  own  property.  They  have 
brought  nothing  on  to  the  land  artificially.  The  water  as  it  is 
poured  into  Meadow  Brook  is  the  water  which  the  mine  nat- 
urally discharges ;  its  impurity  arises  from  natural,  not  artificial 
causes.  The  mine  cannot,  of  course,  be  operated  elsewhere 
than  where  the  coal  is  naturally  found,  and  the  discharge  is  a 
necessary  incident  to  the  mining  of  it.  It  must  be  conceded, 
we  think,  that  every  man  is  entitled  to  the  ordinary  and  natural 
use  and  enjoyment  of  his  property.  The  defendants,  being  the 
owners  of  the  land,  have  a  right  to  mine  the  coal.  It  may  be 
stated,  as  a  general  proposition,  that  every  man  has  the  right  to 
the  natural  use  and  enjoyment  of  his  own  property,  and  if  whilst 
lawfully  in  such  use  and  enjoyment,  without  negligence  or 
malice  on  his  part,  an  unavoidable  loss  occurs  to  his  neighbor, 
it  is  damnum  absque  injuria,  for  the  rightful  use  of  one's  own 
land  may  cause  damage  to  another  without  any  legal  wrong. 
Mining  in  the  ordinary  and  usual  form  is  the  natural  user  of 
coal  lands ;  they  are,  for  the  most  part,  unfit  for  any  other  use. 
'  It  is  established,'  says  Cotton,  L.  J.,  in  West  Cumberland  Iron 
Co.  V.  Kenyon,^-  '  that  taking  out  mineral  is  a  natural  use  of 
mining  property,  and  that  no  adjoining  proprietor  can  complain 
of  the  result  of  careful,  proper  mining  operations.'  In  the  same 
case,  Brett,  L.  J.,  says :  '  The  cases  have  decided  that  where 
the  maxim  sic  utere  tuo  ut  alienum  non  laedas  is  applied  to 
landed  property,  it  is  subject  to  a  certain  modification ;  it  being 
necessary  for  the  plaintiff  to  shoAv,  not  only  that  he  has  sustained 
damage,  but  that  the  defendant  has  caused  it  by  going  beyond 
what  is  necessary  in  order  to  enable  him  to  have  the  natural  use 
of  his  own  land.'  The  right  to  mine  coal  is  not  a  nuisance  in 
itself.  It  is,  as  we  have  said,  a  right  incident  to  the  ownership 
of  coal  property,  and  when  exercised  in  the  ordinary  manner, 

12  L.  R.  11  Ch.  Div.  782;  48  L.  J.  Ch.  793;  40  L.  T.  703. 


656  OIL    AND    GAS. 

and  with  due  care,  the  owner  cannot  be  held  liable  for  permit- 
ting the  natural  flow  of  mine  water  over  his  own  land,  into  the 
water  course,  by  means  of  which  the  natural  drainage  of  the 
country  is  affected.  There  are,  it  is  well  known,  percolations  of 
mine  water  into  all  mines  ;  whether  the  mine  be  operated  by  tun- 
nel, slope  or  shaft,  water  Avill  accumulate,  and,  unless  it  can  be 
discharged,  mining  must  cease.  The  discharge- of  this  acidu- 
lated water  is  practically  a  condition  upon  which  the  ordinary 
use  and  enjoyment  of  coal  lands  depends ;  the  discharge  of  the 
water  is  therefore  part  and  parcel  of  the  process  of  mining,  and 
as  it  can  only  be  effected  through  natural  channels,  the  denial  of 
this  right  must  inevitably  produce  results  of  a  most  serious  char- 
acter to  this,  the  leading  industrial  interest  of  the  State.  The 
defendants  were  engaged  in  a  perfectly  lawful  business,  in 
which  they  had  made  large  expenditures,  and  in  which  the  inter- 
ests of  the  entire  community  w€ffe  concerned ;  they  were  at  lib- 
erty to  carry  on  that  business  in  the  ordinary  way,  and  were  not, 
while  so  doing,  accountable  for  consequences  which  they  could 
not  control ;  as  the  mining  operations  went  on,  the  water  by  the 
force  of  gravity  ran  out  of  the  drifts  and  found  its  way  over 
the  defendant's  own  land  to  the  MeadoAv  Brook.  It  is  clear  that 
for  the  consequences  of  this  flow,  which  by  the  mere  force  of 
gravity,  naturally,  and  without  any  fault  of  the  defendants,  car- 
ried the  water  into  the  brook  and  then  to  the  plaintiff's  pond, 
there  could  be  no  responsibility  as  damages  on  the  part  of  the 
defendants.  But  it  does  not  appear  from  any  evidence  in  this 
cause,  that  the  mine  was  conducted  by  the  defendants,  in  any 
but-  the  ordinary  and  usual  mode  of  mining  in  this  country. 
The  deeper  strata  can  only  be  reached  by  shaft,  and  no  shaft 
can  be  worked  until  the  water  is  drawn.  A  drift  is  in  some 
sense  an  artificial  opening  in  the  land  and  accumulates  and  dis- 
charges water  in  a  greater  volume  and  extent  than  would  other- 
wise result  from  purely  natural  causes,  yet  mining  by  drift  has, 
as  we  have  seen,  been  held  to  be  a  natural  user  of  the  land.  So, 
too,  we  think,  according  to  tire  present  practice  of  mining,  the 
working  of  the  lower  strata  by  shaft,  in  the  usual  and  ordinary 
way,  must  be  considered  the  natural  user  of  the  land  for  the 
taking  out  of  the  coal,  which  can  be  reached  by  shaft  only; 


NUISAlSrCES. 


657 


and,  as  the  water  cannot  he  discharged  by  gravity  alone,  it  must 
necessarily,  as  part  of  the  process  of  mining,  be  lifted  to  the 
surface  by  artificial  means,  and  thence  be  discharged  through  the 
ordinary  natural  channels  for  the  drainage  of  the  country.  We 
do  not  say  that  a  case  may  not  arise  in  which  a  stream,  from 
such  pollution,  may  not  become  a  nuisance,  and  that  the  public 
interests  as  involved  in  the  general  health  and  well  being  of 
the  community  may  not  require  the  abatement  of  that  nuisance. 
This  is  not  such  a  case ;  it  is  shown  that  the  community  in  and 
around  the  city  of  Scranton,  including  the  complainant,  is 
supplied  with  abundant  pure  water  from  other  sources ;  there 
is  no  complaint  as  to  any  injurious  effects  from  the  water  to  the 
general  health ;  the  community  does  not  complain  on  any 
grounds.  The  plaintiff's  grievance  is  for  a  mere  personal  in- 
convenience, and  we  are  of  opinion  that  mere  private  personal 
inconvenience,  arising  in  this  way  and  under  such  circum- 
stances, must  yield  to  the  necessities  of  a  great  public  industry, 
which,  although  in  the  hands  of  a  private  corporation,  sub- 
serves a  great  public  interest.  To  encourage  the  development 
of  the  great  natural  resources  of  a  country,  trifling  inconven- 
iences to  particular  persons  must  sometimes  give  way  to  the 
necessities  of  a  great  community."  ^^  A  case  of  polluting  a 
stream  of  water  in  the  operation  of  an  oil  well  arose  in  this 
same  State.  The  owner  of  the  well  in  boring  it  pumped  a 
large  quantity  of  salt  water  from  it,  into  a  storage  tank,  and 
this  he  drew  off  and  allowed  to  flow  by  a  natural  depression 
over  plaintiff's  adjoining  land.  The  plaintiff  afterwards  di- 
verted it  into  a  neighbor's  brook,  by  plowing  a  ditch  on  his  own 
land  along  the  line  of  depression,  thus  rendering  the  water  in 
the  brook  unfit  for  use.  The  owner  of  the  well  claimed  he  was 
exempt  from  liability  under  the  case  just  quoted  from,  but  the 
court  did  not  so  consider  the  matter,  and  in  passing  on  the  case 
said:  "  If  the  expense  of  preventing  the  damage  ...  is 
such  as  practically  to  counterbalance  the  expected  profit  or  bene- 
fit, then  it  is  clearly  unreasonable,  and  beyond  what  he  could 

13  Pennsylvania  Coal  Co.   v.   San-       ed  in  86  Pa.  St.  401,  and  in  94  Pa. 
derson,  113  Pa.  St.  126;  6  Atl.  Rep.       St.    302. 
453;  overruling  same  case  as  report- 


658  OIL    AND    GAS. 

justly  be  called  upon  to  assume.  If,  on  the  other  hand,  how- 
ever, large  in  actual  amount,  it  is  small  in  proportion  to  the 
gain  to  himself,  it  is  reasonable  in  regard  to  his  neighbor's 
rights,  and  he  should  pay  it  to  prevent  damage,  or  should  make 
compensation  for  the  injury  done.  Between  these  two  extremes 
lies  a  debatable  region  where  the  cases  must  stand  u^wn  their 
own  facts,  under  the  general  rule  that  can  be  laid  down  in  ad- 
vance, that  the  expense  required  would  so  detract  from  the 
purpose  and  benefit  of  the  contemplated  act  as  to  be  a  sub- 
stantial deprivation  of  the  right  to  the  use  of  one's  own  prop- 
erty. If  damages  could  have  been  prevented  short  of  this,  it  is 
injuria  which  will  sustain  an  action."  ^*  But  where  the  rights 
of  the  public  are  concerned,  a  different  rule  prevails  than  in 
instances  of  a  private  character.  Thus  where  oil  land  owners 
in  operating  the  land  for  oil,  after  the  separation  of  the  oil 
from  the  salt  water,  permitted  tile  latter  to  run  out  upon  the 
surface,  and  then  to  run  into  a  stream  from  which  a  city  drew 
its  water  supply,  which  was  thereby  rendered  unfit  for  domestic 
use,  the  rules  laid  down  above  were  held  t'^  not  apply,  the  rights 
of  the  public  standing  on  higher  groimd  than  the  personal  in- 
convenience and  injury  of  a  private  citizen.  The  fact  that  the 
city  was  furnished  water  by  a  private  corporation  was  held  not 
to  lessen  the  right  of  the  public  to  insist  that  the  water  should 
not  be  polluted ;  but  the  court,  in  reversing  the  case,  ordered 
an  intpiiry  into  the  extent  and  value  of  the  oil  operations, 
whether  the  wells  could  be  worked  without  the  pollution  of  the 
stream,  whether  the  water  works  company  could  obtain  a  sup- 
ply elsewhere,  and  the  probable  expense. ^^ 

§583.     Pollution  of  subterranean  waters. 

A  somewhat  different  rule  applies  to  liability  for  the  pollu- 
tinu  of  subterranean  currents  or  streams  of  water.      An  English 

"'PfoifTor  V.   Brown,   105  Pa.   St.  Indictment    lies    for    a    pollution 

'-•  (i7 :   :iO  Atl.  Rep.  844;   Hindson  v^  of   a   river   with   the    refuse   of   gag 

^^[■.iiklo.    171    Pa.    St.    138;    33    Atl.  works.     Rex    v.    Medley,    6    C.    and 

Kep.  74.  P.     292.     See    Manhattan    Gaslight 

15  Commonwealth  v.  Russell,  172  Co.  v.  Barker,  7  Robt.  (N.  Y.)  523. 
Pa.    St.    506. 


NUISANCES.  659 

case  furnishes  an  illustration  of  the  modern  rule  with  reference 
to  the  pollution  of  underground  currents.  The  water  for  two 
wells,  owned  by  two  persons,  was  drawn  from  the  same  strata. 
The  water  in  the  lower  well  rose  by  natural  pressure  to  within 
twenty-seven  feet  of  the  surface,  and  was  then  pumped  out. 
This  well  was  befouled  by  sewerage  poured  into  the  upper  well 
by  its  owner.  It  was  held  that  the  owner  of  the  lower  well 
was  entitled  to  an  injunction  tx3  restrain  the  owner  of  the  upper 
well  from  pouring  sewage  into  it,  or  permitting  it  to  run  in  — 
to  prevent  him  so  using  his  well  as  to  pollute  the  lower  well  — 
and  to  recover  damages  for  the  injury  he  had  already  suffered. 
In  passing  on  the  case  the  court  used  the  following  language, 
from  which  it  appears  that  the  true  cause  of  action  was  that  the 
owner  of  the  polluted  well  allowed  his  impure  sewage  to  escape 
from  his  premises  to  the  lower  premises ;  and  the  fact  that  it 
reached  the  lower  premises  by  an  underground  current  instead 
of  a  surface  stream  was  quite  immaterial .  "  But  it  is  equally 
clear  that  everyone  has  a  right  to  appropriate  percolating 
water,  at  all  events  whilst  it  is  under  his  land.  Xo  one  has  any 
property  in  it  —  no  one  has  any  right  to  have  it  come  on  to 
his  land,  but  everyone  has  an  unlimited  right  to  appropriate  it 
whilst  it  is  under  his  land,  and  may  take  it  all,  so  as  to  prevent 
it  going  on  to  the  land  of  others.  His  neighbor  also  below 
him  has  an  equal  right,  before  the  person  above  has  taken  and 
appropriated  it,  to  take  it  all.  He  has  a  right  to  take  it  to  the 
extent  that  he  may  cause  the  water  of  the  land  above  to  come 
upon  his  land  and  to  take  it  so,  as  to  absolutely  dry  the  land 
above.  Therefore  no  one  has  any  property  in  percolating 
water,  but  everyone  has  a  right  to  appropriate  the  whole  of  it. 
Then  arises  the  question  as  to  whether,  in  respect  of  such  water, 
any  of  those  persons  has  any  right  whatever  as  against  the 
others.  I  take  it  that  this  percolating  water  is  a  common  reser- 
voir or  source  in  which  no  one  has  any  property,  but  from  which 
anyone  lias  a  right  to  appropriate  any  quantity,-.  Then  the 
question  is  whether  anyone  who  has  that  unlimited  right  at  ap- 
propriation, but  has  no  greater  rights  than  any  of  the  others 
who  have  it,  has  a  right  to  contaminate  the  common  reservoir, 
or  whether  he  is  bound  not  to  do  anything  which  shall  prevent, 


660  OIL    AND    GAS. 

not  only  his  immediate  neighbors,  but  anyone  of  those  who  have 
that  unlimited  right,  from  obtaining  its  true  value.  It  is  said 
that  the  defendant  in  polluting  this  common  source,  did  not  pol- 
lute that  in  which  the  plaintiff  had  any  property.  That  is 
true.  If  all  the  plaintiff  can  show  is  that  the  common  source 
was  contaminated,  he  cannot  before  he  has  appropriated  any 
part  of  it,  maintain  any  action  in  respect  of  the  contamination. 
I  do  not  think  that  a  man  can,  by  experimenting  off  or  on  his 
own  land,  and  finding  that  the  water  was  contaminated  before 
it  came  on  to  his  land,  maintain  an  action,  for  the  water  did  not 
belong  to  him,  and  he  had  not  appropriated  it.  But  it  docs  not 
follow  that  he  cannot  maintain  an  action  when  he  has  appropri- 
ated it,  and  finds  that  the  water  which  he  had  a  right  to  ap'- 
propriate,  has  been  contaminated  by  that  Avliich  another  person 
has  done  to  the  common  source ;  that  is,  although  no  one  has 
any  property  in  that  source,  yet4inasmuch  as  everyone  has  a 
right  to  appropriate  it,  he  has  a  right  to  appropriate  it  in  the 
natural  state,  and  no  one  has  a  right  to  contaminate  the  common 
source  so  as  to  prevent  his  neighbor  having  his  right  of  ap- 
propriation. The  next  point  was  that,  assuming  that  to  be  true, 
yet,  if  the  person  who  has  that  right  of  appropriation  can  only 
exercise  it,  or  has  done  so  by  artificial  means,  the  water  he 
took  would  not  have  been  contaminated,  then  the  percolate'' 
water  Avhich  he  got,  must  be  said  to  have  been  polluted  by  his 
act,  and,  therefore,  he  could  not  maintain  an  action.  I  cannot 
think  that  that  is  a  true  proposition.  The  question  of  natural, 
as  distinguished  from  unnatural  user,  never  applies  to  a  plain- 
tiff. '  A  man  has  a  right  to  exercise  that  natural  user  with  all 
the  skill  of  which  he  is  capable.  That  question  is  applicable  to 
a  defendant.  Therefore,  it  seems  to  me,  that  as  long  as  a  plain- 
tiff does  not  use  any  means  which,  as  regards  his  neighbor,  are 
unlawful,  but  only  uses  lawful  means,  however  artificial  or 
extensive  those  means  may  be,  he  has  a  right  to  use  them,  and 
tlic  right  to  appropriate  the  common  source  is  not  diminished 
hy  reason  of  using  those  meaits.  Therefore,  however  he  may 
appropriate  the  water  from  the  common  source,  he  has  a  right 
to  have  that  source  uncontaminated  by  any  act  of  any  other  per- 
son.     The  question  of  natural  or  unnatural  user  only  goes  to 


NUISANCES.  661 

this,  that,  although  a  defendant  does  contaminate  water  or  any- 
thing else  which  goes  on  to  his  neighbor's  land,  yet,  if  that  act 
is  only  the  natural  user  of  the  land,  then,  although  by  that  act 
he  does  injure  his  neighbor,  he  is  not  liable,  because  otherwise 
he  cannot  use  his  land  at  all.  I  must  say,  further,  with  regard 
to  this  common  source  in  respect  of  Avhich  a  right  of  appropria- 
tion belongs  to  every  one,  the  question  does  not  depend  upon 
persons  being  contiguous  neighbors,  but  if  it  can  be  shown  that 
in  fact  the  defendant  has  contaminated  the  common  source,  it 
signifies  not  how  far  the  plaintiff  is  from  him,  if  it  is  proved 
that  he  has  been  injured  by  what  the  defendant  has  done."  ^^ 
There  are  cases,  however,  which  hold  that  a  land  owner  is  not 
liable  to  another  land  owner  injured  by  noxious  substances 
placed  on  his  land  which  penetrate  to  subterranean  streams  and 
are  carried  on  to  the  land  of  such  other  land  owner  by  such 
streams,  to  his  damage ;  and  the  fact  that  he  continues  to  place 
such  noxious  substances  on  his  land  after  he  is  informed  of  the 
damage  they  are  inflicting  upon  his  neighbor,  will  not  render 
him  liable  for  tlie  damage  inflicted  after  receiving  such  notice. ^^ 
But  the  true  rule  would  seem  to  be  that  the  pollution  of  subter- 
ranean streams  will  not  render  anyone  causing  it  liable  until 
he  is  informed  of  the  damage  such  pollution  is  causing,  and 
from  thence  on  he  will  be  liable.^"* 

§584.     Damages  occasioned  by  storing  or  bringing  oil  on  land. 

Every  one  who  brings  oil  or  stores  it  on  land  must  confine  it 
securely  in  pipes,  tanks  or  reservoirs,  or  at  least  not  permit  ii 
to  escape  on  to  the  land  of  another,  whether  by  flowing  over 

16  Ballard  v.  Tomlinson,  29  Ch.  Dillon  v.  Acme  Oil  Co.,  49  Hun 
Div.   115;    54  L.  J.   Ch.   454;    52  L.       5G5. 

T.    942;    33    W.    R.    533;    49    J.    P.  is  Pennsylvania  Coal  Co.   v.    San- 

692;     24     Am.     L.     Reg.     634.     See  derson,  113  Pa.  St.  126;  6  Atl.  Rep. 

Womersley  v.  Church,  17  L.  T.   (N.  453.     See  Kennard  v.  Standard  Oil 

S.)    190;    King  V.  Oxford  Co-opera-  Co.,    89    Ky.    468;    12    S.    W.    Rep. 

tive   Society,   51   L.   T.   94;    Ball  v.  937;   7  L.  R.  A.  451,  where  knowl- 

Nye,  99  Mass.  582;   Carhart  v.  An-  edge    that    its   oil    was   damaging   a 

burn  Gaslight  Co.,  22  Barb.  297.  spring  of  water  was  held  not  neces- 

17  Brown  v.  lUius,   27   Conn.   84;  sary,  in  order  to  render  the  oil  com- 

pany   liable. 


662  OIL    AND    GAS. 

the  surface  or  percolating  through  the  soil,  and  if  he  do  not, 
even  though  guilty  of  no  negligence,  he  will  be  liable  for  what- 
ever damages  is  suffered  by  the  oil  escaping.^"  This  is  true 
of  a  refining  company,  although  the  business  of  relining  oil  is 
perfectly  legitimate ;  yet  it  must  not  permit  the  oil  to  escape 
from  its  premises. '"  If  the  owner  of  the  oil  contaminate  on 
his  own  ground  the  sources  of  a  spring  or  well  on  the  ground  of 
another,  by  spilling  or  pouring  oil  upon  his  own  ground,  he  will 
be  liable  to  the  owner  of  such  spring  or  well,  to  the  extent  of 
the  damage  done.^^ 

§585.     Gases  destroying  trees  and  vegetation. 

The  fumes  and  gases  flowing  from  the  manufacture  of  gas  are 
often  so  strong  and  noxious  as  to  destroy  or  injure  vegetation 
and  crops.  When  such  is  the  case  the  person  injured  is  not  only 
entitled  to  recover  damages  which  he  has  thus  suffered,  but  also 
may  maintain  an  action  to  enjoin  the  further  manufacture  of 
gas  in  a  manner  injurious  to  his  trees,  vegetation  or  crops ;  and 
usually  mere  delay  in  bringing  the  suit  cannot  be  taken  as  an  ac- 
quiescence in  the  conduct  of  the  gas  manufacturer.'^  But  where 
vapors  from  large  copper  works  were  injurious  to  trees,  the 
court  instructed  the  jury  that,  although  every  man  must  so  use 
his  property  as  to  not  injure  the  property  of  another,  yet  the  law 
did  not  regard  trifling  inconveniences ;  that  everything  must  be 
looked  at  from  a  reasonable  point  of  view,  and  therefore  in  a 
case  of  injury  occasioned  by  noxious  vapors  from  a  manufac- 
tory, to  be  actionable,  the  injury  must  be  such  as  to  visibly 

19  Hauck  V.   Tidewater  Pipe  Line  lis,  etc.,  Co.,  60  Minn.  296 ;  62  N.  \V. 

Co.,   153  Pa.   St.   366;   26  All.  Rep.  Rep.    336;    Brady    v.    Detroit,    etc., 

644;  20  L.  R.  A.  642;  McGregor  v.  Co.,  102  Mich.  277;   62  N.  W.  Rep. 

Camden,  47   W.  Va.   193;    34   S.   E.  687;  26  L.  R.  A.  175. 

:  Rep.    936.  22  Broadbent  v.  Imperial  Gaslight 

2oGavigan   v.    Atlantic   Rep.    Co.,  Co.,   7  H.  L.   Cas.  600;   3  Jur.    (N. 

186  Pa.  St.  604;   40  Atl.  Rep.   834;  S.)    221;    5    Gas   J.    342;    9   Gas   J. 

Contra,  Dillon  v.  Acme  Oil  Co.,  49^'  751;    affirming   7    DeG.    M.    and    G. 

Hun  565.  436;   26  L.  J.  Ch.  276;    5  Jur.    (N. 

siKennard   v.    Standard    Oil    Co.,  S.)    1319;   Sholts  Iron  Co.  v.  Inglis, 

89  Ky.  468;   12  S.  W.   Rop.  937;   7  L.  R.  7  App.  Cas.  518. 
L.  R.  A.  451;   Berger  v.  Minneapo- 


NUISANCES.  663 

diminish  the  value  of  the  property ;  that  the  locality  and  all  other 
circumstances  must  be  taken  into  consideration,  and  in  vicini- 
ties where  great  manufacturing  works  had  been  and  were  being 
carried  on,  parties  niust  stand  on  extreme  rights.  On  appeal 
this  direction  was  held  to  be  a  correct  statement  of  the  law."^ 
Where  the  damages  are  slight,  or  out  of  all  proportion  to  the 
damages  that  would  be  inflicted  by  enjoining  the  manufacture 
of  the  product  sought  to  be  enjoined,  the  court  will  refuse  the 
injunction  and  leave  the  complainant  to  his  action  for  dam- 
ages.^* Damages  have  been  allowed  for  grain  injured  by  gases 
escaping  from  a  brick  kiln,"^  so  from  coke  ovens.^® 

§586.     Noisome  smells. 

Unwholesome  and  noisome  smells  proceeding  from  the  manu- 
facture of  gas  will  render  the  manufactor  liable  in  damages, 
if  sufficient  to  produce  deleterious  results  upon  the  persons  liv- 
ing in  the  region  affected  by  them.  "  Gas  works,"  said  the 
court,  "  are  to  be  placed  in  the  class  of  erections  which  are  not 
within  the  ordinary  and  usual  purposes  to  which  real  estate  is 
applied,  and  whenever  they  create  a  special  injury  they  are  to 
be  regarded  as  a  private  nuisance,  for  which  an  action  will  lie 
in  respect  to  the  special  injury,  e.  g.,  a  swine  sty,"^  a  lime  kiln,^^ 
a  dye  house, "^  a  tallow  chandler,  a  furnace,^"  a  coke  oven,'^^" 
a  brew  liouse.^^  a  fertilizing  plant, *^^  or  a  tannery.^"     It  is  suf- 

23  St.  Helen's  Smelting  Co.  v.  bell  v.  Seaman,  63  N.  Y.  568;  20 
Tipping,  11  H.  L.  Cas.  642;  35  L.  J.       Am.   Rep.    567. 

Q.  B.  66;    11  Jur.    (N.  S.)    785;    12  2g  Robb   v.   Carnegie,    145   Pa.   y^^. 

L.  T.    (N.  S.)    776;   13  W.  R.  1083.  324;  22  Atl.  Rep.  649;   14  L.  R.  A. 

See    Sturges    v.    Bridgman,    11    Ch.  329. 

Div.  852;  48  L.  J.  Ch.  785;  41  L.  T.  27  9   Rep.   59. 

219;  28  W.  R.  200.  28  2  Black  141. 

24  Cooke   V.    Forbes,   L.    R.   5   Eq.  29  Hutt  136. 
166;    37   L.    J.    Ch.    178;    17    L.   T.  so  Cro  Car  570. 

(N.   S.)    371;    Attorney   General  v.  *3o  McClung  v.   North  Bend,  etc., 

^Manchester    Corporation    [1893],    2  Co.,   31    Wkly.   L.   Bull.   9;    9   Ohio 

Ch.  87;  62  L.  J.  Ch.  459;  68  L.  T.  Cir.  Ct.  Rep.  259;  6  Ohio  Cir.  Dec. 

608;  41  W.  R.  459;  57  J.  P.  343;  3  243;    1   Ohio  Dec.   247. 

R.   427.  31  R.  Pal.  139;  Hutt  136. 

25  Fogarty  v.  Junction  City,  etc.,  *3i  Fertilizing  Co.  v.  Hyde  Park, 
Co.,    50    Kan.    478;    31    Pac.    Rep.  97    U.    S.   659. 

1052;   18  L.  R.  A.  756.     See  Camp-  32  Carhart     v.     Auburn     Gaslight 


664  OIL    AND    GAS. 

ficient  that  the  manufacture  of  gas  creates  smells,  smokes,  and 
noxious  odors,  so  annoying  to  an  individual  residing  near  the 
company's  works  as  to  render  his  premises  uncomfortable  for 
habitation.  In  such  an  instance  there  is  a  private  nuisance,  for 
which  the  company  is  liable.^^  It  is  immaterial  that  the  gas 
company  used  due  care  to  prevent  the  escape  of  gas;  for  it  is 
the  invasion  of  the  premises  of  another  that  gives  the  right  of 
action.^*  The  rule  extends  even  to  the  manufacturers  of  fer- 
tilizers and  phosphates  from  which  gases  escape  and  affect  the 
paint  of  houses  nearby,  and  eat  the  nails  of  shingles  so  as  to 
render  them  loose,  and  make  living  in  the  house  uncomfortable 
and  unhealthy,  or  has  driven  away  customers  from  the  plain- 
tiff's store.^''^  Mere  annoyance  may  not,  however,  be  sufficient, 
especially  if  the  action  is  to  enjoin  the  use  of  the  plant.  Some 
gas  will  necessarily  escape ;  and  anjr'smell  of  gas  is  annoying, 
though  not  necessarily  unhealthy  to  that  degree  that  it  will 
affect  the  health  of  the  person  it  reaches.^*'  Indeed,  the  rule  has 
been  laid  down  that  to  entitle  the  owner  of  a  dwelling  to  dam- 
ages from  the  storing  of  oil  adjacent  to  his  house,  he  must  suffer 
substantial  and  actual  injuries  in  the  necessary  and  reasonable 
use  of  his  house,  his  physical  comfort  or  his  health,  and  that 
mere  discomfort  and  inconvenience  are  not  sufficient  to  entitle 


Co.,  22  Barb.  297,  citing  Thomas  v.  Jarvis   Gas   Co.,    122   N.   Y.   18;    25 

Braekney,  17  Barb.  654.     See  Butch-  N.   E.   Rep.   246;    9   L.   R.   A.    711; 

ers'  Union  Co.  v.  Crescent,  etc.,  Co.,  Rosenheimer    v.    Standard    Gaslight 

111    U.  ■  S.    746.  Co.,  36  N.  Y.  App.  Div.  1;  55  N.  Y. 

33  Ottawa  Gaslight  Co.  V.  Thomp-  Supp.    192;    People    v.    New    York, 

son,  39  111.  598;  Pottstown  Gas  Co.  etc.,   Co.,   64   Barb.   55;    Carmichael 

V.  Murphy,   39   Pa.   St.   257;    Cleve-  v.    Texarkana,    94    Fed.    Rep.    561; 

land    V.    Citizens'    Gaslight    Co.,    20  Grange  v.  Pately,  etc.,   Co.,   14  Gas 

>i.  J.  Eq.  201;  McGregor  V.  Camden,  J.    309;     Ottawa    Gaslight    Co.     v. 


47  \V.  Va.  193;  34  S.  E.  Rep.  936 
Robb  V.  Carnegie,  145  Pa.  St.  324 
•<2  Atl.  Rep.  649;   14  L.  R.  A.  329 


Graham,  28  111.  73;  Friburk  v. 
Standard  Oil  Co.,  66  Minn.  277;  68 
N.    W.   Rep.    1090. 


Dorr   V.  Dansville  Gaslight   Co.,   18  <*•   35  Susquehanna    Fertilizer    Co.    v. 

Hun  274.  Spangler,  86  Md.  562;  39  Atl.  Rep. 

34  Hauck   V.   Tidewater,   etc.,    Co.,  270. 

153  Pa.  St.  366;  26  Atl.  Rep.  644;  30  Pottstown  Gas  Co.  v.  Murphy, 

20    L.    R.    A.    642;    Bohan   v.    Port  39  Pa.   St.  257. 


NUISAXCES.  665 

him  to  relief.^^  If  the  manufacture  of  the  gas  be  a  continuing 
injury,  a  court  of  equity  will  restrain  its  manufacture  in  a 
manner  injurious  to  the  plaintiff  or  his  property.^^  Injunc- 
tion, however,  w^ill  not  be  granted  to  restrain  the  drilling  of  a 
gas  well  near  a  dwelling  house,  on  account  of  the  prospective 
noise,  stench,  pollution  of  the  air,  and  the  danger  from  fire, 
explosion,  and  lightning  that  would  result  from  the  operation  of 
the  well  at  that  place,  or  on  account  of  the  overflow  of  water  or 
oil  from  it,  at  least  where  it  is  not  certain  that  any  water,  oil, 
or  gas  will  be  found  there ;  and  it  is  not  shown  that  the  gas  well 
could  not  be  so  managed  as  not  to  be  more  than  slight  or  barely 
possible  danger  or  annoyance.^^ 

§587.     Odors  from  operation  of  oil  wells  and  works. 

The  owner  of  property  injured  by  the  operation  of  oil  wells 
or  works  is  not  confined  to  instances  where  the  oil  actually  en- 
ters upon  his  premises ;  but  he  may  recover  because  of  noxious 
odors  occasioned  by  their  operation,  rendering  his  premises  un- 
healthy or  objectionable  to  live  upon.  Slight  evidence  is  suffi- 
cient to  make  out  a  case  for  the  jur)\  Thus  where  it  was 
shown  that  an  oil  company  spilled  oil  on  its  own  land  adjoining 
a  lot  on  which  a  residence  was  located,  and  the  wind  blowing 
from  the  direction  of  the  oil  premises  rendered  the  residence 

37  Gavigan  v.  Atlantic  Refining  Bend,  etc.,  Co.,  9  Ohio  Cir.  Ct.  Rep. 
Co.,  3  Lack.  L.  News    371.     See  this       259. 

case  on  appeal.  See  Friburk  v.  so  Windfall  Mfg.  Co.  v.  Patter- 
Standard  Oil  Co.,  GG  Minn.  277;  68  son,  148  Ind.  414;  47  N.  E.  Rep. 
N.  W.  Rep.  1090.  2;  37  L.  R.  A.  381;  62  Am.  St.  Rep. 

38  Broadbent  v.  Imperial  Gaslight  532. 

Co.,   7  H.  L.  Cas.  600;    3  Jur.    (N.  The   gas    company   cannot    escape 

S.)   221;  9  Gas  J.  751;  affirming  7  liability  by  showing  that  the  plain- 

De   Gex,  M.   and   G.   436;    26  L.   J.  tiff'  produced  other  noxious  odors  in 

Ch.    276;     5    Jur.     (N.    S.)      1319;  his    business    which    contributed    to 

Wragg  V.   Commercial   Gas   Co.,   33  render    his    premises    unwholesome, 

Gas  J.   119,   313;   Attorney  General  unless    it    is    also    shown    that    the 

V.   Gaslight   Co.,   L.   R.    7    Ch.   Div.  injury   complained    of   was    the    re- 

217;    47    L.   .J.   Ch.    534;    37   L.   T.  suit  of  the  combinations  of  both  of 

746 ;    26   W.    R.    125.     See   Butt   v.  the   noxious   odors,   and   that   those 

Imperial  Gaslight  and  Coke  Co.,  L.  created  by  the  gas  company  were  not 

R.  2  Ch.   1.58;    14  L.  T.  R.  349;    15  independently    offensive.     Brown    v. 

Gas    J.     139;     McClung    v.     North  Illius,   27   Conn.   84. 


666  OIL    AND    GAS. 

unhealthy  to  the  occupants,  his  family  suffering  in  consequence 
thereof,  it  was  held  that  there  was  a  case  made  for  the  jury.*" 
Anything  that  deprives  the  occupant  of  the  full  use  and  enjoy- 
ment of  his  property,  as  making  him  or  his  family  sick,  is  ac- 
tionable, even  though  the  business  be  a  lawful  one.*^  The 
damages  may  be  occasioned  merely  by  the  offensive  odors,  the  oil 
never  reaching  the  premises  of  the  plaintiff,  and  "the  recovery 
may  be  not  only  for  discomforts  suffered,*'  but  even  damages 
to  his  business,  by  driving  away  customers.*^  Naphtha  tanks 
may  give  such  offensive  odors  as  to  render  damages  to  a  nearby 
residence,  and  give  the  owner  a  cause  of  action  for  them.**  In 
order  to  entitle  an  owner  of  a  dwelling  to  damages  occasioned 
by  the  storage  of  oil  adjacent  it,  he  must  show  that  he  has 
suffered  actual  and  substantial  injuries  in  the  reasonable  and 
necessary  use  of  his  home  to  his  physical  comfort  or  his  health, 
and  it  is  not  enough  to  show  mere^inconvenience  and  discom- 
fort.*' 

§588.     Other  disagreeable  odors  in  neighborhood. 

On  the  principle  that  one  man  cannot  justify  his  conduct  by 
the  wrongful  conduct  of  another,  it  is  no  defense,  in  an  action 
to  enjoin  the  operation  of  gas  works  in  a  certain  manner,  that 
the  neighborhood  already  contained  establishments  devoted  to 
noxious  and  disagreeable  trades,  unless  by  long  continuance 
such  neighborhood  has  been  so  entirely  given  up  to  such  estab- 

40  Friburk    v.    Standard    Oil    Co.,  44  Bohan  v.  Port  Jervis  Gas  Co., 

66  Minn.  277;  68  N.  W.  Rep.  1090;  122   N.  Y.   18;   25  N.   E.   Rep.  246; 

Hauck  V.  Tidewater  Pipe  Line   Co.,  9  L.   R.   A.   711. 

153  Pa.  St.  366;   26  Atl.  Rep.  644.  45  Gavigan    v.    Atlantic    Refining 

4iGavigan    v.    Atlantic    Ref.    Co.,  Co.,  3  Lack.  L.  News  371;   2  Lack. 

186  Pa.  St.  604;   40  Atl.  Rep.   834.  L.   News  239.     See  this  case   in   40 

42Berger  v.  Minneapolis,  etc.,  Co.,  Atl.  Rep.  834;  186  Pa.  St.  604. 

60  Minn.  296 ;   62  N.  W.  Rep.  336.  Merely  allowing  oil  to  stand  in  a 

43  Brady  v.  Detroit,  etc.,  Co.,  102  pipe  line  lawfully  laid  beneath   the 

Mich.  277;   60  N.  W.  Rep.  687;   26  ^surface  of  the  street  is  not  a  nuis- 

L.   R.   A.   175.     There  must  be   evi-  ance,  even   so  volatile  oil   as   naph- 

dence  to  show  the  loss  to  the  busi-  tha.     Lee    v.    Vacuum    Oil    Co.,    54 

ness.     Keiser  v.  Mahanoy   Gas  Co.,  Hun  156;  7  N.  Y.  Supp.  426. 
143  Pa.   St.   276;   22  Atl.  Rep.  759. 


NUISANCES. 


667 


lishments  thati  an  addition  to  them  would  not  add  to  the  dis- 
comfort.**^ And  the  fact  that  the  well,  for  the  pollution  of 
which  the  action  was  brought  to  recover  damages,  had  also  been 
polluted  by  another  substance  getting  into  it,  will  not  prevent 
the  owner  recovering  such  damages  as  the  gas  company  actually 
caused  by  its  negligent  conduct.*' 

§589.     Degree  of  annoyance. —  Question  for  jury. 

It  is  not  every  annoyance  that  will  give  a  right  of  action  to 
the  person  annoyed.  A  nuisance  is  a  "  thing  which  will  offend 
an  ordinary  man,  and  not  a  delicate-nosed  person."  **  There 
are  many  persons  who  would  be  annoyed  by  gas  works  being 
built  in  the  near  neighborhood  to  their  dwelling,  while  others 
would  regard  it  as  a  matter  of  indifference.  In  instances  of 
charges  of  nuisance  the  question  is  whether  the  acts  done  would 
annoy  the  average  man  —  they  might  annoy  some  and  not  annoy 
others  like  situated ;  and  it  is  a  question  for  the  jury  *^  what 
amount  of  annoyance  will  constitute  a  nuisance  that  will  give  a 
cause  of  action  to  the  person  annoyed.  A  property  owner  is 
entitled  to  enjoy  his  property  as  it  was  before  the  gas  works 
were  erected ;  but  it  is  error  to  say  that  he,  in  the  enjoyment  of 
his  property  is  entitled  to  the  same  enjoyment  as  that  ordinarily 
enjoyed  by  other  persons  in  his  neighborhood  similarly  situated, 
for  the  actual  question  for  the  jury  is  not  a  comparison  of  his 
condition  with  that  of  his  neighbors,  but  whether  the  conduct  of 
the  gas  company  caused  him  an  actual  damage.^"  A  gas  com- 
pany is  responsible  in  damages  for  the  ordinary  smells  that 
usually  proceed  from  such  works  if  they  constitute  a  nuisance ; 
and  the  fact  that  it  is  not  negligent  does  not  protect  it  from 
liability,  if,  even  in  its  usual  course  of  business,  it  injure 
others.  ^^ 

46  Cleveland  v.  Citizens'  Gaslight  Co..  17  Gas  J.  231.  See  Pottstown 
Co.,  20  N.  J.  Eq.  201.  v.  Murphy.   30  Pa.    St.   257. 

47  Sherman  v.  Fall  River  Iron  4n  Rex  v.  Medley,  6  C.  and  P.  292. 
Works,  2  Allen  524 ;  79  Am.  Dec.  so  Columbus,  etc.,  Co.  v.  Freeland, 
/99.  12  Ohio  St.  392. 

48  Tilly  V.   Slough  Gas   and   Coke  si  Pottstown  Gas  Co.  v.  Murphy, 

39  Pa.  St.  257. 


668  OIL    AND    GAS. 

§590.     Gas  or  oil  well  near  house  or  building. 

The  operation  of  a  gas  or  oil  well  in  close  proximity  to  a 
dwelling  house  or  store  may  amount  to  a  nuisance,  the  same  as 
the  operation  of  a  noisome  trade.  Each  particular  case  must 
stand  upon  its  own  facts.  Thus,  in  one  of  the  Circuit  Courts 
of  Ohio  it  was  held  that  the  drilling  and  operation  of  an  oil 
well  on  a  city  lot,  close  to  a  dwelling  house  situated  on  the  ad- 
joining lot,  was  dangerous  and  annoying,  practically  destroying 
the  house  for  the  purpose  of  living  in  it  so  long  as  the  well  was 
operated  ;  and  if  it  were  shown  that  an  action  for  damages  would 
he  inadequate,  a  perpetual  injunction  would  be  granted,  pro- 
hibiting its  operation.^"  In  Pennsylvania  it  was  held  that  an 
oil  well  located  seventy  feet  and  an  oil  tank  eighty  feet  from  a 
dwelling  house  was  not  a  nuisance  pei'  se ;  but  if  the  escape  of 
gases  from  it  was  so  great  as  to  re(]4iire  the  fires  at  times  in  the 
house  to  be  extinguished  in  order  to  prevent  an  explosion,  then 
the  well  became  a  nuisance  in  fact,  and  its  operation  might  be 
enjoined.^^  So  in  Indiana  it  was  held  that  the  drilling  of  a  gas 
well  within  one  hundred  and  fifty-two  feet  of  a  dwelling  house 
would  not  be  enjoined  on  account  of  the  noise,  pollution  of  the 
air,  danger  from  fire  or  explosion  that  would  result  from  the  op- 
eration of  the  well,  or  on  account  of  water  or  oil  from  the  well, 
if  it  be  not  shown  with  certainty  that  water,  oil,  or  gas  would 
be  found,  and  also  if  it  be  not  shown  that  the  gas  well  could  not 
be  operated  in  such  a  manner  as  to  avoid  the  injuries  appre- 
hended. ''  In  the  case  at  bar,"  said  the  court,  "  the  appellant, 
in  locating  its  brick  and  tile  works,  for  which  natural  gas  was 
to  be  used  as  fuel,  selected  a  place  retired  from  all  residences, 
and  there  erected  its  plant  and  machinery  at  great  expense. 
The  business  so  commenced  was  continued  three  years  before 
the  appellees  came  and  erected  their  dwelling  upon  land  across 
the  highway  from  appellant's  land  and  within  200  feet  of  its 
])rick  and  tile  works.  Certainly,  therefore,  unless  the  works 
should  constitute  a  nuisance  peruse,  or  unless  they  were  so  con- 
ducted as  to  become  a  nuisance  in  fact,  the  appellees  arc  not 

r.2  Cline  v.  Kirkbindoe.  12  Ohio  C.  Rs  McGregor    v.    Camden,    47     W. 

C.  Dec.  517;  22  Ohio  Cir.  Kep.  527.       Va.  193;  34  S.  E.  Rep.  936. 


NUISANCES.  669 

in  a  position  to  demand  that  equity  restrain  the  appellant  in  the 
use  of  its  property.  A  nuisance  per  se,  as  the  term  implies,  is 
that  which  is  a  nuisance  in  itself,  and  which,  therefore,  cannot 
be  so  conducted  or  maintained  as  to  he  lawfully  carried  on  or 
permitted  to  exist.  Such  a  nuisance  is  a  disorderly  house,  or 
an  obstruction  to  a  highway,  or  to  a  navigable  stream.  But  a 
business  lawful  in  itself  cannot  be  a  nuisance  per  se,  although, 
because  of  surrounding  places  or  circumstances,  or  because  of 
the  manner  in  which  it  is  constructed,  it  may  become  a  nuisance. 
Certain  kinds  of  business  or  structures,  as  powder  houses,  or 
nitroglycerine  works,  are  so  dangerous  to  human  life  that  they 
may  be  maintained  only  in  the  most  remote  and  secluded  lo- 
calities. Others,  as  slaughter  houses  and  certain  foul-smelling 
factories,  are  so  offensive  to  the  senses  that  they  must  be  re- 
moved from  the  limits  of  cities  and  towns,  and  even  from  the 
near  neighborhood  of  family  residences.  Yet  there  must  be 
some  proper  place  where  every  lawful  business  may  be  carried 
on,  without  danger  of  interference  on  the  part  of  those  who,  in 
some  slight  degree,  may  be  annoyed  or  endangered  by  the  near- 
ness of  the  objectionable  occupation.  Of  course,  all  persons 
have  the  right  to  insist  that  a  business  in  any  degree  offensive 
or  dangerous  to  them  shall  be  carried  en  with  such  improved 
means  and  appliances  as  experience  and  science  may  suggest  or 
supply,  and  with  such  reasonable  care  as  may  prevent  unneces- 
sary inconvenience  to  them.  By  such  care  and  improved  meth- 
ods and  appliances,  many  occupations  formerly  regarded  as 
nuisances  may  now  be  carried  on,  even  in  populous  neighbor- 
hoods, without  annoyance  to  anyone.  So,  an  establishment  in 
some  degree  offensive,  as  a  livery  stable,  may  be  kept  so  cleanly, 
so  free  from  anything  to  offend  the  sense  of  sight  or  of  smell, 
that  the  proprietor  may  invite  his  most  fastidious  visitors  to 
any  part  of  it ;  although  the  same  establishment  might  also  be 
so  kept  as  to  be  an  abomination  even  to  the  passerby  upon  the 
highway.  It  cannot  be  said  that  a  plant  for  the  manufacture 
of  brick  and  drain  tile,  or  even  a  gas  well  sunk  to  supply  fuel 
for  such  a  plant,  is  a  nuisance  per  se.  The  business  is  lawful, 
and,  if  located  in  a  proper  place,  and  conducted  and  maintained 


670  OIL    AND    GAS. 

in  a  proper  manner,  neither  the  plant  nor  the  well  can  be  treated 
as  a  nuisance.  Appellees  voluntarily  selected  the  neighborhood 
of  appellant's  plant  for  their  residence,  three  years  after  the  ap- 
pellant began  business  there ;  and  while  this  circumstance  is 
not  controlling,  yet  it  is  one  that  must  be  taken  into  considera- 
tion. iSTor  will  it  be  sufficient  answer  that  appellant's  gas  well 
was  on  the  east  side  of  the  brick  yard  at  the  time  the  appellees 
selected  their  home  on  a  lot  within  200  feet  of  the  factory.  Ex- 
perience has  shown  that  gas  wells  are  of  short  life,  and  that, 
after  the  failure  of  one  well,  another,  in  order  to  be  successful, 
must  be  located  at  a  considerable  distance  from  the  first.  It  is 
averred  that  there  was  room  for  but  two  wells  on  this  twenty- 
two-acre  tract,  and  that  the  location  of  the  proposed  well  is  the 
farthest  possible  from  the  first  well  and  the  best  that  could  be 
selected.  It  is,  besides,  admitted  by  the  demurrer  to  the  an- 
swer that  the  appellee,  Willard  E^  Patterson,  agreed  that  the 
second  well  should  be  located  within  150  feet  of  his  house;  and, 
while  it  is  possible  that  such  agreement  might  not  bind  his  co- 
appellee,  yet  the  circumstance  shows  that  the  appellant,  in  locate 
ing  its  wells  at  the  distance  of  152  feet  from  the  appellees' 
dwelling,  was  proceeding  carefully  and  with  due  regard  to  ap- 
pellees' rights.  Unless,  therefore,  it  should  be  made  to  appear 
that  the  gas  well  could  not  be  so  managed  and  maintained  as 
not  to  be  of  more  than  slight  or  barely  possible  danger  or  an- 
noyance to  appellees,  it  does  not  seem  that  they  could  have  any 
sufficient  cause  to  ask  that  the  sinking  of  the  well  be  restrained. 
The  record  does  not  show,  nor  have  we  any  means  of  knowing, 
that'  a  well  at  a  distance  of  152  feet,  or  over  nine  rods,  from 
a  dwelling  house,  cannot  be  so  maintained  and  cared  for  as  not 
to  cause  the  injury  and  annoyance  claimed  to  be  threatened  to 
appellees  in  this  case.  It  is  remembered  that  before  a  court  of 
equity  will  restrain  a  lawful  work,  from  which  merely  threat- 
ened evils  are  apprehended,  the  court  must  be  satisfied  that  the 
evils  anticipated  are  imminent,  and  certain  to  occur.  An  in- 
Junction  will  not  issue  to  prevent  supposed  or  barely  possible 
injuries.  In  the  case  before  us,  it  is  not  shown  that  even  if  the 
gas  well  were  in  operation  it  could  not  be  so  managed  and  cared 


NUISANCES. 


G71 


for  as  to  avoid  all  the  injuries  apprehended.  But,  more  than 
this,  there  might  never  be  any  gas  found  in  the  well.  This, 
the  appellees  practically  concede,  when  they  recite  that,  al- 
though gas  might  not  be  found,  yet  that  oil,  or  even  water, 
coming  from  the  well  would  be  dangerous  to  their  residence. 
This  is  altogether  too  speculative.  If  the  appellant  company 
is  willing  to  invest  its  money  in  a  well  from  which  may  be 
brought  to  the  surface  of  the  earth  an  uncontrollable  element 
productive  of  the  evils  feared  by  appellees,  it  must  be  allowed 
to  do  so  at  the  hazard  to  itself  of  all  the  consequences  for  which 
it  would  thus  become  liable.  But  if  the  well  may  be  sunk,  and 
the  gas,  oil  or  water  therefrom,  if  any,  can  be  so  controlled  and 
managed  as  to  cause  no  appreciable  injuries  to  appellees  or  to 
any  one  else  then  such  reasonable  and  lawful  use  of  property 
ought  not  to  be  prevented  by  the  courts.  To  do  so  would  be 
sheer  usurpation  of  arbitrary  power."  '^* 

§591.     Business  authorized  by  government  no  defense. 

A  gas  company  cannot  successfully  defend  against  the  charge 
of  a  nuisance  on  the  ground  that  its  business  has  been  author- 
ized by  the  government  or  by  the  legislature,  even  though  it  be 
chartered  by  a  special  act  of  the  legislature  and  empowered  to 
conduct  its  business  where  its  works  are  located.  Such  a  char- 
ter authorizes  it  to  conduct  its  business  in  a  lawful  and  not  an 
unlawful  manner.  Works  authorized  by  the  legislature  and 
carried  on  without  negligence  may  in  fact  involve  a  nuisance 
for  which  the  company  will  be  liable.  Thus  where  in  a  special 
act  of  parliament  incorporating  a  gas  company  it  was  enacted 
that  the  gas  should  be  of  a  certain  purity,  it  was  held  that  the 
company  was  not  justified  in  causing  a  nuisance,  even  if  the  gas 
could  not  be  made   of  a   sufficient   purity  without   so   doing.'^ 

54  Windfall  Mfg.  Co.  V.  Patterson,  Rail  Co.,  L.  R.  4  H.  L.  171;  38 
148  Ind.  414;  47  N.  E.  Rep.  2;  37  L.  J.  Q.  B.  265;  21  L.  T.  (N.  S.) 
L.  R.  A.  381;  62  Am.  St.  Rep.  532.  238;   18  W.  R.  12    (vibration  caused 

55  Attorney  General  v.  Gaslight  without  negligence,  by  the  passing 
and  Coke  Co..  L.  R.  7  Ch.  Div.  217;  of  trains  after  the  railway  is 
47  L.  J.  Ch.  5.34;  37  L.  T.  746;  26  brought  into  use)  ;  London,  etc.,  R. 
W.  R.  125;  Brand  v.  Hammersmith  R.  Co.  v.  Truman,  11  App.  Cas.  45; 


G72  OIL    AND    GAS. 

But  if  the  particular  location  of  tlic  gas  company's  works  has 
been  expressly  authorized  by  its  charter  or  a  statute,  then  the 
person  damaged  must  show  that  the  company  has  been  guilty 
of  negligence  in  the  conduct  of  its  works/'"  The  fact  that  a  gas 
company  has  a  contract  to  light  the  streets  of  a  city  and  that  if  it 
bs  enjoined  it  will  not  be  able  to  carry  out  its  contract  with  the 
city,  and  virtually  with  the  public,  is  no  defense/^ 

^592.     Duty  of  owner  to  prevent  continuance  of  damages. 

The  o^\^ler  of  property  whose  rights  to  it  have  been  wrongfully 
invaded  by  a  gas  company  is  not  required  to  take  active  steps 
to  abate  the  nuisance  created  or  to  lessen  the  damages.  It  can 
neither  justify  its  conduct  nor  lessen  its  liability  by  setting  up 
the  property  owner's  failure  to  assume  an  active  role  in  order 
to  reduce  its  liability.  Thus,  it  was  held  that  a  -  'ell  owner  was 
not  bound  to  cement  his  well  in  owler  to  prevent  foul  water  en- 
tering it  from  the  gas  Avorks.^^  But  if  he  does  take  active  steps 
to  abate  the  nuisance  or  prevent  the  incurring  of  damages,  in 
an  action  for  such  damages  as  he  has  suffered,  he  may  recover 
whatever  outlay  he  was  put  to,  whether  successful  or  not,  in  so 
far  as  the  efforts  made  might  reasonably  be  expected  to  remedy 
the  evil.^"  But  he  cannot  recover  for  damages  to  his  horses 
occasioned  by  their  drinking  water  polluted  by  a  gas  company, 

55  L.  J.  Ch.  354;  54  L.  T.  250;  34  IQZ;   People  v.   N.  Y.  Gaslight  Co., 

W.  R.   657;    50   J.   P.   388    (a  yard  64  Barb.  55;   6  Lans.  467;   Watson 

for  cattle  traffic  which  was  a  nuis-  v.   Gas   Co.,   5   U.   P.   Q.   B.    (Can.) 

ance    to    neighbors)  ;     Metropolitan  262;   Bohan  v.  Port  Jarvis  Gaslight 

Asylum   District  Managers   v.   Hill,  Co.,  45  Hun  257 ;  Batehelder  v.  Tun- 

6   App.    Cas.    193;    50   L.   J.   Q.    B.  oridge,  etc.,   Co.,   84  L.  T.    765;    65 

353;   44  L.  T.  653;   29   W.  R.  617;  J.  P.  680. 

45  J.  P.  664  (a  water  right)  ;  Parry  56  Bohan  v.  Port  Jarvis  Gaslight 

V.   Croydon   Gas   Co.,   15   C.  B.    (N.  Co.,  45  Hun  257. 

S.)    568;   11  C.  B.    fN.  S.)    578;   10  57  Terre   Haute    Gas    Co.   v.   Teel, 

Jur.    (N.  S.)    172;   9  L.  T.    (N.  S.)  20   Ind.    131. 

u94;     12     W.     R.     212      (penalty);  58  Cleveland   v.   Citizens'  Gaslight 

Pottstown   Gas    Co.   v.   Murphy,   39  Co.,  20  N.  J.  Eq.  201. 

Pa.   St.  257 ;    Bohan  v.  Port  Jarvis  59  Sherman    v.     Fall    River    Iron 

Gas   Co.,    122    N.   Y.    18;    25   N.   '^  Works.   2   Allen   524;    79   Am.   Dec. 

Rep.  246;  9  L.  R.  A.  711;  Rosenhei-  799.     See  Ottawa  Gaslight  and  Coke 

mer  v.  Standard  Gaslight  Co.,  36  N.  Co.  v.  Graham,  28   111.   73. 

Y.   App.    Div.    1;    55    N.    Y.    Supp. 


NUISANCES.  6T3 

if  he  permit  them  to  drink  the  water  after  he  knows  of  its  pollu- 
tion/''* 

§593.     Evidence. 

Evidence  on  the  part  of  the  gas  company  is  not  admissible  to 
show  that  it  has  so  improved  its  works  that  they  no  longer  are 
a  nuisance,  where  the  improvement  is  made  after  the  suit,  unless 
it  is  sought  to  recover  damages  claimed  to  have  been  incurred 
after  such  improvement  was  made,  and  then,  of  course,  only  in 
rebuttal  of  the  claim  that  damages  were  incurred  during  that 
period.  In  other  words,  if  the  defendant  admit  that  the  dam- 
ages were  incurred,  then  the  evidence  is  not  admissible,  for,  as 
we  have  seen,  the  operation  of  gas  works  in  a  city  is  a  nuisance 
if  they  cause  a  special  injury.*'^  And  the  claim  that  they  were 
not  a  nuisance  at  the  time  the  injury  was  rendered,  because 
of  improvements  introduced,  is  not  admissible  in  evidence  as  a 
defense."'  If  the  action  is  to  recover  damages  because  of  the 
contamination  of  a  well,  testimony  concerning  the  condition  of 
water  in  wells  on  other  premises  in  the  neighborhood  is  ad- 
missible, in  order  to  show  the  extent  and  character  of  the  injury 
sustained  by  the  plaintiff,  and  also  as  tending  to  show  that  the 
operation  of  the  gas  plant  could  produce  the  injury  of  Avhich 
complaint  is  made.*''^  On  the  part  of  the  defense "  it  may  be 
shown  that  other  substances  contaminated  the  well  other  than 
those  coming  from  the  gas  works,  in  order  to  reduce  the  dam- 
ages ;  for  the  plaintiff  cannot  recover  for  injuries  inflicted  by 
others,  although  they  were  incurred  at  the  same  time  the  inju- 
ries were  inflicted  by  the  defendant.^* 

§594.     Injunction. 

An  action  for  an  injunction  lies  to  prevent  the  continuance  of 

6  0  Sherman    v.    Fall    River    Iron  es  Belvidere  Gaslight  and  Fuel  Co, 

Works,   2    Allen   524;    79   Am.   Dec.  v.    Jackson,    81    111.    App.    424;    Ot- 

799.  tawa  Gaslight  and  Coke  Co.  v.  Gra- 

61  Carhart    v.     Auburn     Gaslight  ham,   35  111.  346. 

Co.,   22   Barb.   297.  «*  Sherman    v.    Fall     River    Iron 

62  Watson    V.    Gas    Co.,    5    U.    P.       Works  Co.,  5  Allen  213. 
Q.  B.    (Can.)   262. 


674 


OIL    AND    GAS. 


a  nuisance  caused  by  tlie  operation  of  gas  works/^^  nsnally 
against  the  manner  in  which  they  are  being  conducted  and  not 
generally  against  their  operation. *^'^  And  if  necessary  to  afford 
full  relief  the  court  may  issue  a  mandatory  injunction. '^^  But 
it  must  be  borne  in  mind  that  an  injunction  will  not  be  granted 
where  the  alleged  injury  is  trifling  and  transient."**  Thus, 
where  it  appeared,  owing  to  the  company's  precautions,  that 
only  on  three  occasions  had  an  appreciable  escape  of  gas  taken 
place,  and  then  only  from  accidental  defects  which  were  im- 
mediately remedied,  an  injunction  was  refused,  without  preju- 
dice to  bring  an  action  at  law  to  recover  the  damages  sustained.*^" 
Any  one  seeking  to  restrain  an  alleged  future  nuisance  must 
make  a  strong  case  of  probability,  that  the  apprehended  mis- 
chief will  in  fact  arise.'^"  Of  course,  an  actual  befouling  of  a 
stream  may  be  enjoined  in  a  proper  case,'^  especially  where  the 
damages  would  be  inadequate.^^  If  the  contaminated  water 
will  be  deprived  of  its  noxious  qualities  before  it  reaches  the 
land  of  the  plaintiff  an  injunction  will  be  denied.^^ 


65  Imperial  Gaslight  Co.  v.  Broad- 
bent,  7  H.  L.  Cas.  600;  29  L.  J. 
Ch.  377;  5  Jur.  (N.  S.)  1319;  7  De 
Gex  MacN.  and  G.  436;  5  Gas  J. 
342;  9  Gas  J.  751;  Manhattan  Gas- 
light Co.  V.  Barker,  7  Kobt.  (N. 
Y.)  523;  Tenant  V.  Goldwin,  1  Salk. 
21,  360;  2  Ld.  Raym.  1089;  New  Or- 
leans V.  Gaslight  Co.,  5  La.  Ann. 
439. 

CO  Cleveland  v.  Citizens'  Gaslight 
Co.,  20  N.  J.  Eq.  201;  Wragg  v. 
Commercial  Gas  Co.,  33  Gas  J.  119, 
313;  Attorney  General  v.  Gaslight 
and  Coke  Co.,  7  Ch.  Div.  217;  bO 
Gas  J.  791,  827;  Butt  v.  Imperial 
Gaslight  Co.,  L.  R.  2  Ch.  158;  14 
L.  T.  Rep.  349;  15  Gas  J.  139. 

c7  Hendrie  v.  Lea  Bridge,  etc.,  Co., 
21   Gas  J.  949,  989. 

0  8  Attorney  General  v.  Cambridge, 
etc.,  Co.,  L.  R.  4  Ch.  71;  38  L.  J. 
Ch.  94;  19  L.  T.  (N.  S.)  508;  17 
W.  R.  145. 

C9  Cooke   V.    Forbes,   L.   R.   5   Eq. 


166;  37  L.  J.  Ch.  178;  17  L.  T.  (N. 
S.)    371. 

"0  Attorney  General  \.  Manches- 
ter Corporation  [1893],  2  Ch.  87; 
62  L.  J.  Ch.  459;  68  L.  T.  608;  41 
W.  R.  459;  57  J.  P.  343;  3  R.  427. 
See  Windfall  Mfg.  Co.  v.  Patterson, 
148  Ind.  414;  47  N.  E.  Rep.  2;  37 
L.  R.  A.  381;   62  Am.  St.  Rep.  532. 

Where  a  prescriptive  right  to  be- 
foul a  stream  has  been  acquired, 
the  fouling  must  not  be  enlarged  to 
the  prejudice  of  others.  Crossley  v. 
Lightowler,  L.  R.  2  Ch.  478;  36  L. 
J.  Ch.  584;  16  L.  T.  (N.  S.)  638; 
15  W.  R.  801 ;  Baxendale  v.  Mc- 
Murray,  L.  R.  2  Cn.  790;  16  W. 
R.    32. 

"1  Clowes  V.  Staffordshire  W.  W. 
Co.,  L.  R.  8  Ch.  125;  42  L.  J.  Ch. 
107;  27  L.  T.  521;  21  W.  R.  32. 

"2  Pennington  v.  Brinsop  Coal  Co., 
5  Ch.  769;  46  L.  J.  Ch.  773;  37  L. 
T.   149 ;  25  W.  R.  874. 

73  Elmhirst  v.  Spencer,  2  MacN.  & 


xuisAjxcES.  675 

§595.     Enjoining  erection  of  gas  plant. 

An  action  Avill  not  lie  to  enjoin  the  erection  of  gas  works 
near  a  dwelling,  on  the  theory  that  the  reservoirs  to  contain  the 
gas  are  liable  to  explode  and  injnre  snch  house  and  those  resid- 
ing in  it.  It  is  the  manner  in  which  the  gas  works  will  be  con- 
ducted that  must  be  shown  in  order  to  obtain  an  injunction ; 
for  it  is  a  matter  of  notoriety  that  gas  works  can  be  so  con- 
ducted as  to  not  seriously  annoy  those  in  the  neighborhood,  al- 
though persons  sensitive  to  the  odors  necessarily  escaping  may 
object.'*  Xor  will  the  drilling  of  a  gas  or  oil  well  be  enjoined, 
especially  when  it  is  doubtful  if  either  gas  or  oil  will  be  found. ^^ 

§596.     Former  recovery  a  bar. 

If  the  plaintiff  has  already  recovered  a  judgment  for  damages 
because  of  the  deterioration  of  his  real  estate  by  the  main- 
tenance of  the  gas  works  in  "its  vicinity  and  for  the  pollution 
of  the  water  thereon  and  rendering  it  unfit  for  use,  such  judg- 
ment is  a  bar  to  any  further  prosecution  for  the  same  cause, 
the  continuance  of  the  works  being  the  sole  basis  of  the  second 
claim  for  damages."*  But  where  an  action  was  brought  for 
damages  incurred  by  injury  to  croj>s  occasioned  by  the  erection 
and  maintenance  of  gas  works,  and  the  noxious  vapors  and 
smells  created  thereby ;  and  the  action  was  referred  to  an  arbi- 
trator to  determine  the  injury,  and  '^  what  should  be  done  " 
between   the  parties ;   and  nearly  two  years  elapsed  before  he 

G.  4.5;  Wood  V.  Waud,  3  Exch.  (48;  148    Ind.    414;    47    X.    E.    Rep.    2; 

18  L.  J.   Exch.   305;    13  L.  T.   212;  37   L.   R.  A.   381;    62  Am.   St.    Rep. 

13  Jur.  742.  532. 

An    action    lies    to    prevent    hot  If  a  gas  company  becomes  a  nuis- 

water  being  poured  into  a  stream ;  anee    the   nuisance   may   be   abated, 

yet    if    it    reaches    a    natural    tern-  Walla  Walla  v.  Walla  Walla  Water 

perature     before     entering    on     the  Co.,   172  U.  S.   1;    19  Sup.  Ct.  Rep. 

plaintiff's  land,  there  is  no  damage.  77 ;    Fertilizing  Co.   v.   Hyde   Park, 

Jlklason  V.  Hill,  3  B.  and  Ad.  304;  5  97  U.   S.  659;   Butchers'  Union  Co. 

B.  and  Ad.  1.;  2  N.  and  M.  747:    2  v.  Crescent,  etc..  Co..  Ill  U.  S.  746; 

L.    J.    K.    B.    118.  4     Sup.     Ct.    Rep.    652;     Coates    v. 

74  Cleveland  v.   Citizens'  Gaslight  Mayor,  7  Cow.  585. 

Co..  20  N.  J.  Eq.  201.  tg  Decatur  Gaslight  and  Coke  Co. 

75  Windfall  Mfg.  Co.  v.  Patterson,       v.   Howell,   92   111.    19. 


676  OIL    AXD    GAS. 

made  his  award  with  respect  to  the  damages  sustained  up  to 
the  date  of  the  award ;  and  no  evidence  was  given  with  respect 
to  prospective  damages;  an  entry  was  made  in  regard  to  the 
award  the  same  as  if  it  had  been  a  verdict;  and  subsequently 
the  gas  company  increased  their  works  and  altered  their  method 
of  manufacture ;  it  was  held,  on  a  bill  filed  by  the  plaintitf  two 
months  after  the  award,  that  he  was  entitled  to  a  perpetual 
injunction  to  restrain  the  further  manufacture  of  gas  in  a 
manner  injurious  to  his  crops,  and  that  there  had  been  no 
acquiescence  on  his  part  to  deprive  him  of  his  right  to  an  in- 
junction. The  award  was  treated  as  equivalent  to  the  verdict 
of  a  jury.^^ 

§597.     Indictment  for  nuisance. 

An  indictment  for  the  creation  of  a  nuisance  in  the  conduct 
of  its  works  lies  against  a  gas  cor4pany,  even  though  it  has  been 
authorized  by  a  special  act  of  the  legislature  to  conduct  its 
works  in  the  town  or  city  where  located ;  and  the  fact  that  it  has 
been  so  authorized  is  no  defense.^^  But  if  the  company,  under 
such  authority,  has  erected  its  buildings  in  the  best  manner  pos- 
sible, and  used  the  best  known  methods  of  making,  storing  and 
distributing  gas,  it  will  not  be  liable,  although  it  may  be  liable 
to  a  private  person  injured  by  the  operation  of  the  works  in 
the  manner  described.^" 

§598.     Waste  of  natural  gas  or  oil. 

In  Indiana  a  statute  provides  that  it  shall  be  unlawful  for 
any  one  having  possession  or  control  of  a  gas  or  oil  well  "  to 
allow  or  permit  the  flow  of  gas  or  oil  from  "  it  "  to  escape  into 
the  open  air,  without  being  confined  Avithin  such  well  or  proper 
pipes,  or  other  safe  receptacle  for  a  longer  period  than  two 
days  next  after  gas  or  oil  shall  have  been  struck  in  such  well ; 

T7  Imperial  Gaslight  Co.  v.  Broad-  L.   T.    (N.   S.)    694;    12  W.  R.   212; 

bent,  7  H.  L.  Cas.  600;  29  L.  J.  Ch.  11  C.  B.    (N.  S.)   578;  Rex  v.  Med- 

377;    5    Jiir.    (N.    S.)     1319;    7    De  ley.  6  C.  and  P.  292. 

G.  ]McN.  and  G.  43G;   9  Gas  J.  751.  to  People   v.    K   Y.    Gaslight   Co., 

78  Parry  v.   Croydon   Gas   Co.,    15  64  Barb.  55 ;  6  Lans.  467. 

C.   B.  568;   10  Jur.    (N.  S.)    172;   0  - 


NUISANCES. 


C77 


and  thereafter  all  such  gas  or  oil  shall  be  safely  and  securely 
confined  in  such  well,  pipes  or  other  safe  and  proper  recep- 
tacles." ^^  It  was  not  only  held  that  this  statute  was  consti- 
tutional, hut  also  that  the  State  could  maintain  an  action  to 
restrain  the  waste  of  gas  in  violation  of  its  provisions,  where  it 
w^as  alleged  that  the  penalties  for  the  M^asting  of  gas  w^ere  wholly 
inadequate,  and  that  the  injuries  occasioned  by  the  wrongful 
and  unlawful  conduct  of  the  defendant,  if  permitted  to  continue, 
would  be  irreparable.  It  was  considered  that  permitting  gas 
to  escape  in  violation  of  the  statute  was  a  nuisance.  In  pass- 
ing upon  the  case  the  court  said : 

"  Appellee's  counsel  have  conceded  that  the  pressure  in  gas 
wells  since  the  discovery  of  gas  in  this  State  has  fallen  from 
350  ]X)unds  *to  150  pounds.  This  very  strongly  indicates  the 
possibility,  if  not  the  probability,  of  exhaustion.  In  the  light 
of  these  facts,  one  who  recklessly,  defiantly,  persistently,  and 
continuously  wastes  natural  gas,  and  boldly  declares  his  purpose 
to  continue  to  do  so,  as  the  complaint  charges  appellee  with 
doing,  all  of  which  it  admits  to  be  true  by  its  demurrer,  ought 
not  to  complain  of  being  branded  as  the  enemy  of  mankind. 
But  appellee  tries  to  excuse  its  conduct  on  the  score  that  it 
cannot  mine  and  utilize  oil  under  and  in  its  land  without  wast- 
ing the  gas.  But  there  is  nothing  in  the  record  to  hear  out  that 
claim.  However,  if  there  was,  it  would  not  furnish  a  valid 
excuse.  It  is  not  the  use  of  unlimited  quantities  of  gas  that  is 
prohibited,  but  it  is  the  waste  of  it  that  is  forbidden.  The 
object  and  policy  of  that  inhibition  is  to  prevent,  if  possible, 
the  exhaustion  of  the  storehouse  of  nature,  wherein  is  deposited 
an  element  that  ministers  more  to  the  comfort,  happiness,  and 
well  being  of  society  than  any  other  of  the  bounties  of  the  earth. 
Even  if  the  appellee  cannot  draw  oil  from  its  wells  without 
wasting  gas,  it  is  not  denied  that  it  may  draw  gas  therefrom, 
and  utilize  it  without  wasting  the  oil.  But,  even  if  it  cannot 
draw  oil  from  such  wells  without  wasting  gas,  and  is  forbidden 

80  Burns'    Stat.    1901,    Sec.    7510; 
Thornton's    Rev.    Stat.     1897,     Sec. 


678  OIL    AND    GAS. 

by  injunction  so  to  do,  it  is  only  applying  the  doctrine  that  the 
owner  must  so  use  his  own  property  as  not  to  injure  others. 
It  may  use  its  wells  to  produce  gas  for  a  legitimate  use,  and  must 
so  use  them  as  not  to  injure  others  or  the  connrmnity  at  large. 
The  continued  Avaste  and  exhaustion  of  the  natural  gas  of  In- 
diana through  appellee's  wells  would  not  only  deny  to  the  in- 
habitants the  many  valuable  uses  of  the  gas,  but  the  State, 
whose  many  quasi-public  corporations  bave  many  millions  of 
dollars  invested  in  supplying  gas  to  the  State,  and  its  inhab- 
itants, will  suffer  the  destruction  of  such  corporations,  the  loss 
of  such  investments  and  a  source  of*  large  revenues.  To  use 
appellee's  wells  as  they  have  been  doing,  they  injure  thousands 
and  perhaps  millions  of  the  people  of  Indiana,  and  the  injury, 
the  exliaustion  of  natural  gas,  is  not  only  an  irreparable  one, 
but  it  will  be  a  great  public  calamity.  The  oil  appellee  pro- 
duces is  of  very  small  consequence  as  compared  with  that  ca- 
lamity which  it  mercilessly  and  cruelly  holds  over  the  heads  of 
the  people  of  Indiana,  and,  in  effect,  says :  '  It  is  my  property 
to  do  as  I  please  with,  even  to  the  destruction  of  one  of  the 
greatest  interests  the  State  has,  and  you  people  of  Indiana  help 
yourselves  if  you  can.  What  are  you  going  to  do  about  it  ?  ' 
We  had  petroleum  oil  for  more  than  a  third  of  a  century  before 
its  discovery  in  this  State,  imported  from  other  States,  and 
we  could  continue  to  do  so  if  the  production  of  oil  should 
cease  in  this  State.  But  w^e  cannot  have  the  blessings  of  nat- 
ural gas  unless  the  measures  for  the  preservation  thereof  in  this 
State  are  enforced  against  the  lawless.  We  therefore  conclude 
that  the  facts  stated  in  the  complaint  make  a  case  of  a  public 
nuisance  which  the  appellant  has  a  right  to  have  abated  by  in- 
junction, and  that  the  complaint  states  facts  sufficient  to  consti- 
tute a  cause  of  action."  ^^ 

81  state  V.  Ohio  Oil  Co.,  150  Ind.  21;   149  N.  E.  Rep.  809. 


CHAPTER  XXIX. 


LEAKS  AND  EXPLOSIONS. 

§509.  Duty  of  gas  companies  in  general. 

§600.  Care  required  of  gas  companies. 

§601.  Gas  company  must  keep  its  gas   constantly  under  control. 

§602.  Degree  of  care  required  of  gas  company. 

§603.  Night  watchman. 

§604.  Gas  company's  act  or  neglect  must  have  caused  the  damage. 

§605.  Two  or  more  defendants  liable. 

§606.  Statute  permitting  recovery  although  there  is  no  negligence. 

§607.  Explosion  occasioned  by  a  violation  of  a  statute. 

§608.  Laying  gas  main  in  navigable  river. 

§609.  Overwhelming  disaster. 

§610.  Burden  of  proof. 

§611.  Presumption  of  negligence  does  not  arise  from  proof  of  e.xplosion. 

§612.  Presumption  of  negligence  arising  from  proof  of  e.xplosion. 

§613.  Stop-cock' on  street  line. 

§614.  Intervening  agency. 

§615.  Inspection  of  pipes  or  mains. 

§616.  Duty  to  make  repairs  immediately. —  Available  force. 

§617.  Notice  of  leaks. 

§618.  Notice. —  Failure  to  discover  place  of  leak. 

§619.  Notice  of  leak,  when  not  necessary  to  fix  liability. 

§620.  Evidence  of  notice  to  gas  company  of  danger  to  mains. 

§621.  Evidence  of  other  leaks. 

§622.  Evidence  of  leaks. 

§623.  Breaks  occasioned  by  ordinary  use  of  streets. 

§624.  Action  of  frost. 

§625.  Pipes  breaking  from  lack  of  support. —  Excavations  near  pipe  lino. 

§626.  Property  owner's  duty  to  notify  gas  company  of  leaks. 

§627.  Company  misleading  plaintiff  as  to  extent  of  danger. 

§028.  Municipality  operating  plant. 

§629.  Gas  following  supply  pipe  from  main. —  Percolating  through  soil. — 

Sewer. 

§630.  Withdrawing  gas  from  mains  without  notice. 

§631.  Undue  pressure  in  mains. 

§632.  Evidence  of  undue  pressure  at  other  places. 

§633.  Explosion  caused  by  act  of  servant  of  gas  company. 

679 


680  OIL    AND    GAS. 

§634.  Company  undertaking  to  repair  consumer's  pipes  or  fixtures. 

§635.  Injury  to  shade  trees. —  Shrubbery. 

§636.  Illuminating  gas  driving  sewer  gas  into  house. 

§637.  Explosion  caused  by  act  of  third  person. 

§638.  Gasfitter  igniting  escaping  gas. 

§639.  Negligence  of  fellow  servant. 

§640.  Person  on  premises  by  license. 

§641.  Guest  or  inmate  of  family  may  recover   from  gas  company  wlrere 

owner  is  negligent. 

§642.  Lessee's  right  of  action  against  the  gas  company. 

§643.  Third  person  causing  gas  to  escape,  liability. 

§644.  Gas  turned  on  by  owner  or  stranger. 

§64.5.  Landlord's  right  of  action  against  tenant. 

§646.  Tenant's   right  of  action  against   landlord. 

§647.  Owner  of  premises  liable  to  injured  person. 

§648.  Plaintiff  must  show  due  care  on  his  part. —  Contributory  negligence. 

§649.  Owner  removing  from  his  premises    to  avoid  injury. 

§650.  Duty  of  property  owner  to  cut  off  supply  of  gas. 

§651.  Searching  for  leaks  with  a  light. 

§652.  Contributory  negligence  a  questien  for  the  jury. 

§653.  Negligence  of  parent,  wife  or  servant. 

§654.  Contributory  negligence  of  tenant  may  bar  landlord, —  reversionary 

interest. 

§655.  Negligence  of  contractors. —  Lessee. 

§656.  Right  of  action  over. 

§657.  Liability  of  gasfitter. 

§658.  Evidence  to  show  due  care  on  gas  company's  part. 

§659.  Expert  evidence  to  show  effect  of  electrolysis. 

§660.  Evidence  in  cases  of  inhalation  of  gas. 

§66L  Expert  evidence   on  inhalation   of  gas. 

§662.  Proof  of  effect  upon  growing  vegetation  or  grass. 

§663.  What  acts  of  negligence  a  question  for  the  jury. 


§599.     Duty  of  gas  companies  in  general. 

In  speaking  of  the  duty  of  a  gas  company  supplying  a  city 
and  its  inhabitants  with  gas,  the  Supreme  Court  of  Massachu- 
setts has  used  the  following  language:  "The  defendants  [a 
gas  company],  under  their  charter,  were  in  the  enjoyment  of  a 
great  and  peculiar  privilege,  that  of  supplying  the  means  of 
light  to  all  parts  of  the  city.  This  devolved  upon  them  a  cor- 
responding degree  of  responsibility  in  the  conduct  of  their  busi- 
ness and  in  the  preservation  of  every  part  of  their  apparatus 
from  defects  by  which  the  public  might  be  subjected  to  great 
inconvenience,  and  individuals  be  exposed  to  imminent  peril 


LEAKS    AND    EXPLOSIONS.  681 

and  danger  in  respect  to  property  and  their  lives.  They  are 
therefore  under  the  highest  degree  of  obligation  to  be  at  all 
times  in  a  state  of  the  most  ample  preparation  to  meet,  with 
all  reasonable  promptitude  and  despatch,  whatever  exigency 
might  occur.  It  is  manifestly  impossible  that  they  should  have 
at  their  service,  at  every  moment  and  at  every  point  of  exposure, 
an  adequate  force  to  overcome  a  sudden  fracture  of  their  pipes, 
or  any  other  casual  and  unexpected  obstacle  in  the  conduct  of 
their  affairs  in  the  shortest  possible  time.  All  that  they  are 
required  to  do  is  to  afford  ample  opportunities  to  all  parties  in- 
terested to  make  communications  to  them,  to  institute  and  main- 
tain an  efficient  system  of  oversight  and  superintendence,  and 
to  be  prepared  with  a  sufficient  force  ready  to  be  put  in  action, 
and  fully  competent  to  supply  and  furnish  a  prompt  remedy  for 
all  such  accidents,  defects,  and  interruptions  in  their  affairs,  as 
from  experience  and  character  of  their  works  there  was  reason- 
able ground  to  anticipate  might  occur."  ^ 

§600.     Care  required  of  gas  companies. 

In  Massachusetts  the  following  rule  was  laid  down  by  the 
Supreme  Court,  relative  to  the  care  required  of  a  gas  company 
furnishing  a  city  and  its  inhabitants  with  gas :  "  It  is  the  duty 
of  gas  companies,  which  are  invested,  for  their  own  profit  and 
advantage,  with  the  great  and  important  privilege  of  supplying 
the  community  Avith  light  for  private  habitations,  and  for  other 
places  devoted  to  public  or  private  use,  to  exercise  due  care 
and  diligence  in  keeping  the  gas  constantly  under  their  control 
and  preventing  it  from  escaping  into  a  dwelling  house  or  place 
of  business,  where  the  inmates  or  occupants  are  in  such  cases 
involuntarily  subjected  to  its  effects,  whether  they  are  positively 

1  Holly    V.    Boston    Gaslight    Co.,  against    its    liability    for    damages 

8  Gray  123;  69  Am.  Dec.  233.  occasioned  by  an  explosion  brought 

Where  water  is  used  in  a  meter,  about  by  its  negligence.     Bastian  v. 

the    gas    company    must    keep    the  Keysi-one   Gas   Co.,   27    N.    Y.   App. 

meter  so  supplied  with  water  that  it  Div.    584;    50   N.   Y.   Supp.   537;    4 

will    not    leak.     Hacker    v.    London  Am.  Neg.  Rep.  529;  Deckert  v.  Mu- 

Gaslight  Co.,  32  Gas  J.  781.  nicipal,  etc.,  Co.,  9  N.  Y.  App.  Div. 

A  gas   company  cannot  contract  573 ;   41   N.  Y.  Supp.  692. 


682  OIL    AXD    GAS. 

injurious  or  merely  disgusting  and  offensive.  If  its  effect  is 
noxious  as  well  as  disagreeable,  the  diligence  required  to  take 
care  of  and  control  it  should  be  still  more  active  and  unremit- 
ting." "^ 

§601.     Gas  company  must  keep  its  gas  constantly  under  control. 

A  gas  company  operating  in  the  streets  of  a  city  or  to^^^l  is 
bound  to  constantly  keep  its  gas  under  control,  and  prevent  it 
escaping  into  dwelling  houses  and  places  of  business ;  and  if  the 
gas  does  escape  and  cause  damages,  the  company  is  usually 
liable.^  And  the  fact  that  the  company,  in  the  erection  and 
operation  of  its  plant,  took  all  reasonable  and  proper  precau- 
tion, and  used  the  best  and  most  approved  machinery  and  appli- 
ances, added  all  that  a  prudent  person  could  do  to  prevent  the 
escape  of  gas  from  its  plant,  of  itself  does  not  relieve  the  com- 
pany from  responsibility,  if  an  injury  actually  results  because 
of  the  escaping  gas.*  Gas  is  regarded,  and  is,  a  dangerous 
substance ;  and  he  who  brings  it  onto  his  or  another's  premises 
must  safely  keep  it  a„  his  peril.  In  this  respect  it  is  not  unlike 
the  collection  of  a  large  body  of  water  upon  one's  premises; 
the  person  so  doing  does  so  at  his  peril  and  must  keep  it  safely 
confined.  In  an  Ohio  case  where  a  stand-pipe  filled  with  water 
fell,  causing  much  damage,  the  court  said :  "  This  brings 
us  to  the  consideration  of  the  question  of  the  liability  of  one 
who,  for  his  own  purposes,  collects  upon  his  premises  a  substance 
likely  to  injure  others  in  case  it  escapes. 

2  Emerson  v.  Lowell  Gaslight  Co.,  3  Armbruster  v.  Auburn   Gaslight 

3  Allen  410;  Parry  v.  Smith,  L.  R.  Co.,  18  N.  Y.  App.  Div.  447;  4G  N. 

4  C.  P.  325;  33  Gas  J.  899.  Y.  Supp.   158;   Bastian  v.  Keystone 
Every  precaution  suggested  by  ex-  Gas  Co.,   27   N.   Y.   App.  Div.   584 ; 

perience    and    the    known    dangers  50   N.    Y.    Supp.    537;    Chisholm   v. 

must   be   taken.     Koelsch   v.   Phila-  Atlanta    Gaslight    Co.,    57    Ga.    28; 

delphia    Co.,    152    Pa.    St.    355;    25  Triple,  etc.,  Co.  v.  Wellman    (Ky.), 

Atl.  Rep.  522;   18  L.  R.  A.  759;   34  70  S.   W.  Rep.  49;    So.  Oil,  Langa- 

Am.  St.  Rep.  653.  bough  v.  Anderson,  22  Ohio  Cir.  Ct. 

The   fact   that   other    causes   cva-  Rep.  178;  12  Ohio  C.  D.  341. 

tributed  to  the  injury  does  not  bar  4  Belvidere  Gaslight  Co.  v.  Jack- 

the  action,  though  it  may  be  shown  son,   81   111.  App.  424. 
to  affect  the  damages.     Sherman  v. 
Fall  River,  etc.,  Co.,  5  Allen  213. 


LEAKS    A>'D    EXPLOSION'S.  683 

"  The  principle  upon  which  liability  rests  in  such  case  is 
quite  unlike  that  which  determines  the  liability  of  one  who 
leaves  unguarded,  excavations  upon  his  own  lands,  or  one  who 
negligently  constructs  a  building  so  that  it  falls  upon  his  own 
premises.  In  these  latter  cases  no  one  can  be  injured  unless 
he  comes  upon  the  premises.  If  he  remains  away,  he  is  safe. 
In  the  former,  the  danger  arises  from  the  natural  tendency  of 
the  things  to  escape  from  the  premises  where  stored,  together 
with  the  likelihood  of  its  doing  injury  if  it  does  escape  there- 
from. In  England  it  seems  to  be  settled  by  Fletcher  vs.  Ry- 
lands,**  inanimate  substances  or  animate  things  from  the  escape 
of  which  injury  is  likely  to  follow,  to  prevent  such  escape. 
While  this  duty  may  not  extend  to  trespassers,  or  those  w'ho,  for 
their  own  purposes,  without  express  or  implied  invitation  from 
the  proprietor,  chose  to  come  upon  the  premises,  yet  that  case 
(Fletcher  vs.  liylands,  sizpra), should  be  regarded  as  extending 
this  duty  to  all  persons  who  may  be  rightfully  on  adjoining 
premises.  Blackburn,  J.,  in  the  course  of  an  able  opinion,  and 
speaking  for  the  wliole  court,  used  the  following  language : 
'  We  think  the  true  rule  of  law  is  that  the  person,  who,  for  his 
own  purposes,  brings  on  his  land,  and  collects  and  keeps  there 
anything  likely  to  do  mischief  if  it  escapes,  must  keep  it  in 
at  his  peril,  and  if  he  does  not  do  so,  is  prima  facie  answerable 
for  all  the  damage  that  is  the  natural  consequence  of  its  escape. 
He  can  excuse  himself  by  showing  that  the  escape  was  owing  to 
plaintiff's  default ;  or,  perhaps,  that  the  escape  was  the  conse- 
quence of  a  vis  major,  or  the  act  of  God.  .  .  .  The  general 
rule  as  above  stated  seems  on  principle  just.  The  person  whose 
grass  or  corn  is  eaten  down  by  the  escaping  cattle  of  his  neigh- 
bor, or  whose  mine  is  flooded  by  the  water  from  his  neighbor's 
reservoir,  or  whose  cellar  is  invaded  by  the  filth  of  his  neighbor's 
privy,  or  whose  habitation  is  made  unhealthy  by  the  fumes  and 
noisome  vapors  of  his  neighbor's  alkali  works,  is  damnified  with- 
out any  fault  of  his  own,  and  it  seems  but  reasonable  and  just 
that  the  neighbor  who  has  brought  something  on  his  own  prop- 
erty which  was  not  naturally  there,  harmless  to  others  so  long 

*4L.   R.   1   Exch. 


6 Si  OIL    AND    GAS. 

as  it  is  confined  to  bis  own  property,  but  wbicb  be  knows  to  be 
miscbievous  if  it  gets  on  bis  neigbbor's,  sbould  be  obliged  to 
make  good  tbe  damage  wbicb  ensues  if  lie  does  not  succeed  in 
confining  it  to  bis  own  property.  But  for  bis  act  in  bringing 
it  tbere,  no  miscbief  may  accrue,  and  it  seems  but  just  tliat  be 
sbould,  at  bis  peril,  keep  it  tbere,  so  tbat  no  miscbief  may  ac- 
crue, or  answer  for  tbe  natural  and  anticipated  consequences. 
And  upon  autbority,  tbis,  we  tbink,  is  establisbed  to  be  tbe  law, 
wbetber  tbe  tbings  so  brougbt,  be  beasts,  or  water,  or  filtb,  or 
stencbes.' 

"  Tbis  doctrine,"  resumes  tbe  Ohio  court,  "  would  seem  to  be 
in  exact  accord  justice  and  sound  reason ;  but  in  the  case  before 
us  we  are  not  required  to  apply  it  to  its  full  extent,  because  tbe 
defendant  in  error,  in  her  amended  petition,  expressly  avers 
negligence  in  the  construction  of  tbe  stand-pipe,  as  well  as  knowl- 
edge that  it  had  afterward  cracl^d  and  become  weakened,  a 
negligent  failure  to  make  repairs,  and  tbat  the  accident  which 
caused  her  injuries  was  the  direct  result  of  such  negligence." 

"  Therefore,  whether  or  not  she  could  recover  in  the  absence 
of  negligence  on  the  part  of  the  water  company  in  storing  the 
water,  does  not  concern  us  at  tbis  time,  for,  however  that  may 
be,  certainly  one  who,  like  defendant  in  error,  is  rightfully  on 
premises  adjoining  those  upon  which  such  substances  are  stored, 
and  is  injured  by  their  escape,  should,  upon  the  plainest  prin- 
ciples of  natural  justice,  recover  from  the  proprietor  storing  the 
same,  damages  for  such  injury,  where  tbe  escape  was  caused  by 
negligence." 

'■  While  every  person  has  exclusive  dominion  over  his  own 
property,  and  may  subject  it  to  such  uses  as  may  subserve  his 
wishes  and  private  interests,  he  is  bound  to  have  respect  and 
regard  for  bis  neighbor's  rights." 

"  The  maxim  '  sic  utere  tuo  ut  alienum  non  laedas  '  limits  his 
powers.  He  must  make  a  reasonable  use  of  bis  property,  and 
a  reasonable  use  can  never  be  construed  to  include  those  uses 
which  produce  destructive  vafbrs  and  noxious  smells,  and  tbat 
result  in  material  injury  to  the  property  and  to  the  comfort  of 
the  existence  of  those  who  dwell  in  the  neighborhood."  ''  Tbe 
reports  are  filled  with  cases  where  this  doctrine  has  been  applied. 


LEAKS    AXD    EXPLOSIONS.  685 

and  it  may  be  con  ftdeiitly  asserted  that  no  authority  can  be  pro- 
duced holding;  that  ne^liffence  is  essential  to  establish  a  cause 
of  action  for  injuries  of  such  a  character."  ^ 

§602.     Degree  of  care  required  of  gas  company. 

The  decisions  are  not  uniform  with  respect  to  the  degree  of 
caro  required  of  a  gas  company  to  prevent  leaks  and  explosions. 
In  many  cases  it  is  said  that  the  company  must  use  due  care  to 
prevent  an  injury  to  person  or  property,  no  other  qualifications 
of  the  degree  of  care  being  used.*'  And  after  notice  of  a  leak 
it  is  said  it  must  use  "  reasonable  diligence  "  to  discover  and 
stop  it,  which  is  an  elastic  phrase ;  and  it  may  be  remarked  no 
one  would  expect  it  to  use  ''  unreasonable  degree  of  diligence."  ^ 
In  a  Pennsylvania  case  the  degree  of  care  required  was  stated 
as  follows :  "  The  definitions  of  negligence  which  have  been 
attempted  imply  that  a  higher  degree  of  care  and  vigilance  is 
required  in  dealing  with  a  dangerous  agency  than  in  the  ordi- 
nary aifairs  of  life  or  business,  which  involve  little  or  no  risk  of 
injury  to  persons  or  property.  "WTiile  no  absolute  standard  of 
duty  in  dealing  with  such  agencies  can  be  prescribed,  it  is  safe 

5  Defiance   Water    Co.   v.    Olinger,  In    Kentucky    it   is    held    that    a 

54  Ohio  St.  532;  44  N.  E.  Rep.  238;  natural  gas  company  is  not  an  in- 

32    L.    R.    A.    736 ;    35    Ohio   L.    J.  surer  of  the   safety  of  its  product, 

323.  350.  so  as  to  be  responsible  for  a  failure 

The  court  cites  St.  Mary's  Wool-  to  keep  it  confined.     It  is  only  iia- 

en   Mfg.   Co.  v.   Bradford  Glycerine  ble  for  a  failure  to  exercise  ordinary 

Co.,    14    Ohio    Cir.    Ct.    Rep.    522;  care.  Triple  State,  etc..  Co.  v.  Well- 

Bohan   v.    Gaslight    Co.,    122    X.    Y.  man    (Ky.),  70  S.  W.  Rep.  49. 

18;    9   L.   R.   A.    711;    34   Am.    and  c  pine  Bluff,  etc.,  Co.  v.  McCain, 

Eng.   Corp.   Cas.   57;    and   Brady  v.  62   Ark.    118;    34   S.   W.   Rep.    549; 

Detroit  Street,  etc.,   Co.,   102   Mich.  Louisville    Gas    Co.    v.    Gutenkuntz, 

277;   60  N.  W.  Rep.  687;   26  L.  R.  82  Ky.   432;   Triple  State,  etc.,  Co. 

A.    175.  V.   Wellman    (Ky.),   70   S.  W.   Rep. 

This   is  the   doctrine  of   the   case  49;   24  Ky.  Law  Rep.  851. 

of    Rylands    v.    Fletcher,    L.    R.    3,  "^  Consolidated  Gas  Co.  v.  Crocker, 

H.  L.    330.  which   has  been   held   in  82  Md.   113;    34   Ati.  Rep.   423;    31 

Pennsylvania  not  to  he  applicable  to  L.  R.  A.  785;    Hunt  v.  Lowell  Gas- 

a     gas     company.     Strawbridge     v.  light  Co..  1  Allen  343;  Blenkiron  v. 

Philadelphia,     13     Phila.     173;     13  Great    Central   Gas,   etc.,   Co.,   2   F. 

Repr.  216;  36  Leg.  Int.  276.  and  F.  437;   2  Gas  J.   292,   776;   3 

L.  T.   (X.  S.)    317. 


686  OIL    AND    GAS. 

to  say,  in  general  terms,  that  every  reasonable  precaution  sug- 
gested by  the  experience  and  the  known  dangers  of  the  subject 
ought  to  be  taken.  This  would  require,  in  the  case  of  a  gas 
company,  not  only  that  its  pipes  and  fittings  should  be  of  such 
material  and  workmanship,  and  laid  in  the  ground  with  such 
skill  and  care,  as  to  provide  against  the  escape  of  gas  therefrom 
when  new,  but  that  such  system  oi  inspection  should  be  main- 
tained as  would  insure  reasonable  promptness  in  the  detection 
of  all  leaks  that  might  occur  from  the  deterioration  of  the  ma- 
terial of  the  pipes,  or  from  any  other  cause  wuthin  the  circum- 
spection of  men  of  ordinary  skill  in  the  business.  It  requires 
nothing  unreasonable  ;  it  does  not  require  that  the  company  shall 
keep  up.  a  constant  inspection  all  along  its  lines  without  refer- 
ence to  the  existence  or  non-existence  of  probable  cause  for  the 
occurrence  of  leaks  or  escape  of  gas."  ^  But  in  an  Indiana  case, 
in  speaking  of  the  duty  of  a  nati^ral  gas  company,  the  court 
said :  "  Appellant  was  engaged  in  dealing  in  and  furnishing  to 
its  patrons  a  dangerous,  deadly  explosive,  and  inflammable  ele- 
ment. The  character  of  the  product  it  furnished  required  of 
it  the  highest  degree  of  care  and  caution,  and  imposed  upon  it 
a  continuing  duty  of  oversight  and  inspection."  ^  These  sev- 
eral expressions  may  be  all  reconciled,  probably,  by  the  well 
known  rule  in  negligence  cases  that  due  care  in  a  particular 
instance  depends  u^wn  the  existing  danger  —  the  care  required 
increasing  with  increase  of  the  danger.  Or,  as  it  has  been 
stated,  in  a  particular  application,  a  gas  company  is  bound  to 
exercise  a  reasonable  degree  of  care  commensurate  wdth  the  dan- 
gerous and  explosive  nature  of  its  commodity.^"     This  is  the 

8  Koelseh  v.  Philadelphia  Co.,  152  9  Indiana,   etc.,   Gas   Co.   v.   Long, 

Pa.   St.  355;    25  All.   Rep.  522;    18  27    Ind.    App.   219;    59   N.   E.   Rep. 

L.    R.    A.    759;    34    Am.    St.    Rep.  410;  Alton  Ry.,  etc.,  Co.  v.  Foulds, 

653.     "  Something  like  this  was  said  81    111.  App.   322;    affirmed   190   III. 

in  Kiebele  v.  Philadelphia,  105   Pa.  367;  60  N.  E.  Rep.  53/   (elctricity)  ; 

St.  41,  and  in  Holly  v.  Boston  Gas-  Bastian  v.  Keystone  Gas  Co.,  27  N. 

light  Co.,  8  Gray  123;  69  Am.  Dec.  Y.  App.  Div.   584;    50  N.  Y.  Supp. 

233;   and  Smith  v.  Boston  Gaslight*"  537. 

Co.,   129  Mass.  318;   and  this  prin-  lo  This    was    said    with    reference 

ciple  is  recognized  in  many  kindred  to   the   duty   of   a   gas   company    in 

cases."  keeping   its    meters    in    a   condition 


LEAKS    AXD    EXPLOSIONS.  687 

rule  laid  down  in  many  eases/^  It  must  be  borne  in  mind  tliat 
a  gas  company  is  a  quasi-public  corporation,  in  cities  and  towns 
dealing  with  the  public,  and  having  the  right  to  lay  its  pipes  in 
the  public  streets.  Hence  there  devolves  upon  it  a  duty  to  use 
a  greater  degree  of  care  than  if  it  was  merely  a  private  corpora- 
tion, especially  if  the  latter  is  remote  from  contact  with  the 
public.  It  is  handling  a  dangerous  substance  —  probably  more 
dangerous  than  gunpowder  —  often  in  the  midst  of  heavily  pop- 
ulated districts ;  and  such  a  situation  calls  for  a  high  degree  of 
care.  "  Care  and  diligence,"  said  the  Supreme  Court  of  Massa- 
chusetts, "  should  always  vary  according  to  the  exigencies  which 
require  vigilance  and  attention,  conforming  in  amount  and 
degree  to  the  particular  circumstance  under  which  they  are  to 
be  exercised.  But  it  must  be  equal  to  the  occasion  on  which  it 
is  to  be  used,  and  is  always  to  be  judged  of  according  to  the 
subject  matter,  the  force  and  danger  of  the  material  under  the 
defendant's  charge  and  the  circumstances  of  the  case."  ^' 

§603.     Night  watchman. 

It  is  the  duty  of  a  gas  company  to  keep  watch  not  only  in  the 
day  time  over  its  plant  and  the  supply  of  gas,  but  also  at  night; 
especially  where  the  pressure  of  the  gas  in  the  mains  fluctuates, 
as  in  the  case  of  natural  gas.  "  A  person  or  corporation  who 
furnishes  natural  gas  to  customers  and  negligently  causes,  suf- 
fers or  permits  the  pressure  to  increase  beyond  the  usual  and 

free  from  menace  of  danger  to  the  App.  Div.  447;  46  N.  Y.  Supp.  158; 

persons  or  property  of  others.     An-  Barriokman   v.    Marion   Oil    Co.,   45 

derson  v.  Standard  Gaslight  Co.,  17  W.  Va.  634;   32  S.  E.  Rep.  327;  44 

N.    Y.   Misc.    625;    40    X.    Y.    Supp.  L.  R.  A.  92. 

671.  12  Holly  V.   Boston   Gaslight   Co., 

11  Butcher  V.  Providence  Gas  Co.,  g    Gray    123;     69    Am.    Dec.    233; 

12    R.    I.    149;    34    Am.    Rep.    626;  Holding  v.  Liverpool  Gas  Co..  3  C. 

Rockford     Gaslight,     etc.,     Co.     v.  B.   1 ;    10  Jur.   883;    15  L.  J.  C.  P. 

Ernst,   68   111.   App.   300    (must  ex-  301;  5  X.  Y.  Leg.  Obs.  77;  Anthon 

ercise    care    in    the    use    of    gas    in  N.   P.   356,'  note;   Koelsch  v.   Phila- 

proportion    to   the   danger);    Belvi-  delphia     Co.,     supra;     Mississinewa 

dere  Gaslight  and  Fuel  Co.  v.  Jack-  ]\Iining  Co.  v.  Patton,  120  Ind.  472; 

son,  81   HI.  App.  424;    Chisholm  v.  28    X.    E.    Rep.    1113;    28    -Im.    St. 

Atlanta    Gaslight    Co.,    57    Ga.    28;  Rep.  203. 
Armbruster    v.    Auburn,    18    X.    Y. 


688  OIL    AND    GAS. 

acGJistomed  pressure  to  the  extent  that  it  overheats  stoves,  etc., 
of  its  customers,  and  without  the  hatter's  fault,  so  that  damage 
resuhs  to  the  customers,  such  act  is  a  positive  wrong,  and  is 
therefore  actionable.  In.  a  case  of  this  character  it  is  not  suffi- 
cient to  relieve  the  gas  company  from  liability  for  it  to  show 
that  its  regulators,  etc.,  were  in  good  repair  and  working  order ; 
but  it  must  go  further  and  show  that  it  had  maintained  an  effi- 
cient system  of  inspection ;  that  it  provided  a  watchman  or  com- 
petent servant  to  control  the  pressure,  etc.^'^  Especially  is  it 
necessary  for  this  to  be  done  during  the  night,  for  it  has  become 
a  matter  of  common  knowledge  that  during  the  night,  while 
many  fire^  are  either  turned  out  or  down,  that  receive  their  sup- 
ply of  fuel  from  the  same  main,  the  pressure  is  increased."  ^* 

§604.     Gas    company's    act    or    neglect    must    have    caused    the 
damage. 

It  is  an  elementary  proposition  that  the  act  of  the  gas  com- 
pany, or  its  neglect  to  perform  a  duty,  must  cause  the  damages, 
to  make  it  liable.  The  damages  must  be  directly  traceable  to 
the  act  of  the  gas  company ;  or  they  must  be  directly  traceable 
to  its  failure  to  perform  a  duty,  the  word  "  duty  "  in  this  con- 
nection implying  that  the  company  is  under  an  obligation  to 
perform  the  thing,  which,  omitting  to  perform  caused  the  in- 
jury. In  an  Indiana  case  is  furnished  an  illustration  of  this 
statement.  A  complaint  in  an  action  against  a  natural  gas 
company  to  recover  damages  to  the  plaintiff,  caused  by  an  over- 
heated stove,  contained  the  allegations  that  the  plaintiff  had  con- 
trol of  all  gas  appliances  within  her  home,  except  the  mixer,  that 
the  defendant,  over  her  protest,  substituted  a  number  seven  for 
a  number  five  mixer,  but  there  was  no  allegation  that  the  de- 
fendant was  bound  to  furnish  such  a  mixer  as  the  consumer 
desired,  or  that  the  fire  might  not  have  occurred  with  either 
mixer ;   that   a  valve  was   placed  in  the   pipe  to  regulate  the 

13  Citing  Koelsch  v.  Philadelphia       Ind.  App.  219;   59  N.  E.  Rep.  410; 

Co.,   152  Pa.   St.   355;  25  Atl.  Rep.  *-'  Indiana,  etc.,  Gas  Co.  v.  New  Hamp- 

522;  34  Am.  St.  653;  18  L.  R.  A.  shire,  etc.,  Co.,  23  Ind.  App.  298; 
759.  53  N.  E.  Rep.  485. 

1*  Indiana,   etc.,   Co.  v.    Long,   27 


LEAKS    AXD    EXPLOSIONS,  689 

flow  of  gas,  but  that  the  amount  of  the  flow  depended  entirely 
upon  the  pressure,  which  was  regulated  by  the  company;  that 
the  "  valve  was  used  to  turn  off  and  put  on  the  gas,"  and  that 
'*  she  had  carefully  adjusted  the  valve  to  suit  the  pressure  be- 
fore her  absence."  It  was  held  that  the  complaint  failed  to  show 
any  negligence  on  the  part  of  the  defendant,  and  also  failed  to 
show  that  the  plaintiff  was  free  from  fault.  In  passing  on  the 
case  the  court  said:  "In  the  case  at  bar  the  complaint  fails 
to  make  a  case  within  the  above  rule.  Construing  the  pleading 
most  strongly  against  the  pleader  we  can  but  conclude  that  it 
fails  to  show  any  negligence  on  the  appellee's  part,  and  also 
fails  to  show  appellant  free  from  fault.  It  appears  that  ap- 
pellant had  control  of  all  gas  appliances  within  her  home  except 
the  mixer.  Complaint  is  made  that  appellee  changed,  over 
appellant's  protest,  a  number  five  for  a  number  seven  mixer, 
but  there  is  nothing  to  show  that  appellee  wns  legally  bound  to 
furnish  such  mixer  as  the  consumer  wished.  So  far  as  we  are 
informed  by  the  complaint,  the  fire  might  have  occurred  with 
either  mixer.  It  is  not  shown  where  the  right  to  detennine 
the  size  of  the  mixer  lay.  Appellee  may  have  had  the  right 
under  franchise  to  require  a  certain  mixer  for  such  a  house  as 
appellant's ;  it  may  have  had  a  perfect  right  to  change  the 
mixer  as  it  did.  It  is  not  claimed  the  mixer  put  in  was  de- 
fective, or  that  any  of  the  appliances  were  defective.  It  is 
not  shown  that  the  change  was  a  negligeut  act,  or  that  appellee 
did  anything  wrong-ful  in  making  the  change,  or  that  after  the 
change  was  made  it  negligently  increased  the  pressure  through 
such  changed  mixer.  It  is  averred  that  the  gas  passes  out  of 
the  pipe  through  mixer  into  an  instrument  called  a  burner,  and 
in  the  pipe  before  the  point  where  the  gas  passes  through  the 
mixer,  '  is  placed  a  valve  which  is  opened  and  closed  to  regulate 
the  flow  of  the  gas,  but  the  amount  of  the  flow  of  gas  depends 
upon  the  pressure  entirely,'  and  that  the  pressure  is  regulated 
by  the  company.  It  is  also  averred  that  the  '  valve  is  used  to 
turn  off  and  put  on  the  gas.'  Construing  these  averments  to- 
gether they  mean  that  the  flow  of  gas,  whether  the  pressure  was 
great  or  small,  was  controlled  by  this  valve.     And  it  seems  ap- 


090  OIL    AND    GAS. 

pellant  knew  this  and  acted  upon  it,  and  that  she  also  knew  the 
pressnre  was  not  uniform,  for  she  avers  that  '  she  had  carefully 
adjusted  the  valve  to  suit  the  pressure  before  her  absence.'  If 
she  made  a  mistake  and  failed  to  turn  the  valve  low  enough, 
she  cannot  complain.  It  is  clear  from  the  pleading  that  she 
knew  the  manner  of  regulating  the  flow  of  gas,  and  made  an  at- 
tempt to  regulate  it."  ^^  Where  a  complaint  alleged  that  the 
defendant  was  guilty  of  negligence  in  failing  to  turn  off  the 
supply  of  gas  from  a  house  after  being  directed  to  do  so,  in  order 
that  a  defective  pipe  within  the  cellar  might  be  located  and 
fixed ;  and  that  the  plaintiff,  who  was  a  plumber,  while  search- 
ing for  the  defect  was  injured  by  an  explosion,  it  was  held  that 
it  did  not  show  that  the  injury  was  the  proximate  cause  of  the 
defendant's  negligence,  as  the  presumption  is  that  there  was 
an  inteiwening  res'ponsible  agency  for  which  the  defendant  was 
not  responsible.^*'  So  where  it  appeared  that  the  gas  came  into 
the  cellar  through  a  break  at  the  junction  of  the  service  pipe  and 
the  "  riser  "  leading  up  into  the  house,  and  that  the  gas  C(3m- 
pany's  workmen  were  engaged  in  repairing  the  mains  opposite 
the  house,  but  there  was  no  evidence  to  show  that  their  work  in 
any  way  affected  the  service  pipe,  or  it  did  not  connect  them 
in  any  way  with  the  condition  of  the  pipe ;  it  was  held  that  no 
negligence  was  shown  on  the  part  of  the  company  or  its  servants, 
and  a  compulsory  non-suit  was  entered.^'^  Where  the  gas  had 
been  cut  off  and  the  meter  in  an  engine  room  removed  and  the 
service  pipe  left  open ;  and  it  was  charged  that  gas  escaped, 
reached  a  lamp  and  exploded,  causing  a  fire ;  and  the  only  facts 
on  which  the  plaintiff's  theory  was  based  were  that  the  windows 
where  the  lamp  stood  were  found  in  the  alley  alongside  of  the 

15  Ibach   V.   Huntington,   etc.,   Co.,  of  Philadelphia,   13   Phila.    173;    36 

23    md.   App.   281;    55   N.    E.   Rep.  Leg.  Int.  276;   13  Rep.  216;   Straw- 

240.  bridge    v.    City    of    Philadelphia,    2 

icMcGahan  v.   Indianapolis,  etc.,  Penn.    419;     State    v.    Consolidated 

Oas   Co.,    140   Ind.    335;    37    N.    E.  Gas  Co.,  85  Md.  637;   37  Atl.   Rep. 

Rep.  601;   29  L.  R.  A.   355.     With-  263. 

out  proof  of  negligence,  the  dofencit  i7  Krzywoszynski  v.   Consolidated 

ant  cannot  be   held  responsible   for  Gas  Co.,  4  N.  Y.  App.  Div.  161;  38 

damages  caused  by  an  explosion  of  N.  Y.  Supp.  929. 
escaping  gas.     Strawbridge   v.  City 


LEAKS    AND    EXPLOSIOlSrS.  G91 

shop,  although  there  was  nothing  to  show  that  they  had  been 
blown  out ;  that  the  lamp  was  lying  on  the  floor  unbroken,  and 
after  the  fire  a  strong  odor  of  gas  was  noticed  near  the  service 
pipe ;  and  no  one  saw  the  commencement  of  the  fire,  nor  saw 
or  heard  an  explosion,  although  persons  were  within  ninety  feet 
when  the  fire  broke  out;  and  the  windows  were  the  only  evidence 
to  show  there  had  been  an  explosion ;  that  the  open  furnace 
under  the  boilers  between  the  gas  pipe  and  the  lamp  had  an  open 
fire  in  it;  and  the  plaintiff  claimed  that  as  gas  rises,  and  the 
lamp  was  higher  than  the  furnace,  and  the  fire  in  the  latter  was 
low,  the  gas  might  reach  the  lamp  first ;  it  was  held  that  the 
evidence  of  an  explosion  was  not  sufficient  to  submit  the  case 
to  the  jury,  even  though  the  contention  of  the  plaintiff  that 
gas  would  rise  was  true,  for  it  would  show  that  that  part  of  the 
room  above  the  lamp  was  filled  with  gas,  and  its  explosion  would 
have  produced  more  destruction  than  was  caused  by  the  alleged 
explosion/^ 

§605.     Two  or  more  defendants  liable. 

The  circumstances  may  be  such  that  two  or  more  defendants 
may  be  liable  for  the  damages  occasioned  by  a  leak  or  explosion. 
Such  would  be  an  instance  where  an  individual  negligently  set 
fire  to  escaping  gas,  the  company  having  had  ample  notice  that  it 
was  escaping  and  having  had  sufficient  time  to  stop  the  leak. 
Where  two  companies  are  jointly  sued,  but  the  several  grounds 
of  their  liability  are  wholly  separate  and  distinct,  the  admis- 

18  Benson    v.    Allegheny    Heating  low  and  high  pressure  line,  produc- 

Co.,   188  Pa.  St.   614;   41   Atl.  Rep.  ing  an  explosion,   which  would  not 

729.  have  otnerwise  occurred.     McKenna 

A  gas  company  is  not  liable  for  v.    Bridge   Water    Co.,    193   Pa.    St. 

injuries     caused    by     an     explosion  633;   45  Atl.  Rep.  52;   47  L.  R.  A. 

where   it  is  directly  caused  by  the  790.     See  also  Triple  State,  etc.,  Co. 

gas  being  introduced  into  the  dwell-  v.   Wellman    (Ky. ),   70    S.  W.  Rep. 

ing   by  another  gas  company's  em-  49;  24  Ky.  L.  Rep.  851. 
ployee,  who,  mistaking  the  line  for  Evidence  of  what  the  pressure  of 

that  of  his  own  company,  opened  a  another  company's  gauge  is,   is  not 

by-pass,    which    was    properly    pro-  admissible.     Barrickman   v.   IMarion 

tected,      without     the      defendant's  Oil   Co.,   45   W.   Va.   634;    32   S.  E. 

knowledge,  and  which  connected  its  Rep.  327 ;  44  L.  R.  A.  92. 


692  OIL    AND    GAS. 

sions  of  one  company  touching  the  cause  of  the  accident  are  not 
admissible  in  behalf  of  its  co-defendant;  and  counsel  for  one 
company  cannot  comment  in  argument  or  admissions  made  by 
the  employees  of  the  other  defendant  touching  its  responsibility 
for  the  accident,  unless  it  has  been  shown  that  such  employees 
were  authorized  to  make  such  admissions.  In  such  an  instance, 
(he  one  defendant  is  not  entitled  to  the  benefit  of  an  instruction, 
given  with  plaintiff's  consent,  which  is  unduly  favorable  to  its 
co-defendant,  the  rulings  as  to  the  one  defendant  being  correct  in 
themselves ;  and  that  admission  of  a  servant  of  one  of  the  de- 
fendants, made  after  verdict  rendered  at  the  close  of  the  plain- 
tiff's evidence  in  favor  of  his  employer,  touching  the  cause  of 
the  accident,  is  not  admissible  in  favor  of  the  co-defendant  com- 
pany, since  the  defendant  making  the  admissions  is  no  longer 
a  party  to  the  controversy.^^  In  the  case  just  cited  it  was  held 
that  one  gas  company  was  liable,  even  though  only  a  part  of 
the  gas  that  exploded  was  its  own.  So  if  one  carelessly  and 
negligently  applies  a  light  to  escaping  gas  he  will  be  liable 
equally  with  the  gas  company  that  negligently  permitted  it  to 
escape.""  Where  gas  Avells  were  drilled  by  a  subcontractor,  the 
pipes  being  furnished  by  the  contractor  and  put  together  by  the 
subcontractor ;  and  after  the  subcontractor  had  ceased  to  use 
the  pipes  and  gas  for  drilling  purposes,  the  agents  of  the  con- 
tractor took  up  the  north  and  south  line,  which  connected  Avith 
the  east  and  west  line,  leaving  one  joint  connected  with  the  T, 
after  which  the  accident  happened,  the  pipe  line  then  being 
solely  the  property  of  the  contractor ;  the  latter  was  held  liable 
because  he  had  assumed  the  subcontractor's  former  charge 
to  care  for  the  line,  which,  after  the  accident,  was  used  as  a 
part  of  the  permanent  line.  And  where,  before  the  accident, 
gas  was  delivered  to  the  company  by  the  contractor,  partly 
through  the  pipe  line  in  question,  the  company,  as  well  as  the 

i!»Koplan  V.  Boston  Gaslight  Co.,  20  pine  Bhiff,  etc.,  Co.  v.  McCain, 

177   raass.    1.1 ;    58   N.   E.   Rep.   18.3;  62    Ark.    118;    34    S.    W.   Rep.    549; 

Schermerhorn  v.  Metropolitan  Gas^  see  Flint  v.  Gloucester  Gaslight  Co., 

light   Co.,  5  Daly  144;   Burrows  v.  3  Allen  343. 
March   Gas  and   Coke   Co.,  L.   R.   5 
Exch.  67;  22  L.  T,   (N.  S.)  24. 


LEAKS    AND    EXPLOSIONS.  693 

contractor,  was  held  liable,  notwithstanding  the  fact  that  he 
had  not,  at  the  time  of  the  accident,  fully  completed  his  con- 
tract, nor  formally  turned  over  the  plant  to  the  company  which 
was  in  actual  use,  for  the  escape  of  gas  wdiich  flowed  through 
the  pipe  in  question."^  Where  a  contractor  laying  gas  mains 
in  a  street  joined  them  imperfectly,  and  the  gas  company  turned 
on  the  gas  before  the  works  had  been  turned  over  to  it,  to  test 
the  pipes,  and  the  gas  escaped  at  the  imperfect  joints,  injuring 
a  workman ;  it  was  held  that  both  the  gas  company  and  the  con- 
tractor were  jointly  liable  —  the  contractor,  because  he  had 
done  imperfect  work;  and  the  gas  company,  because  it  was  its 
duty  to  see  that  the  pijies  were  in  a  proper  condition  before 
turning  gas  into  them."'  A  somewhat  similar  decision  was 
made  in  case  of  escaping  oil  catchuig  fire.  In  this  instance  an 
oil  pipe  was  connected  with  an  oil  car.  The  oil  escaping  from 
the  pipe  caught  fire,  and  in  order  to  save  the  car  by  pushing  it 
along  from  the  track  it  became  necessary  to  disconnect  it  from 
the  pipe.  A  servant  went  upon  the  car  by  direction  of  another 
servant  to  turn  the  valve  in  it  in  order  to  cut  off  the  flow  of  the 
oil  into  the  pipe,  and  upon  being  advised  and  assured  that  the 
oil  had  been  cut  off,  the  injured  servant  disconnected  the  pipe 
from  the  car,  whereupon  the  oil,  by  reason  of  the  fact  that  it 
had  not  been  cut  off,  jwured  over  him,  igniting  and  burning 
him  severely.  There  were  no  stop-cocks  in  the  pipe,  so  the  oil 
could  be  cut  off  in  case  of  danger,  having  l>een  removed  with- 
out notice  to  the  servant  sustaining  the  injuries.  The  court  con- 
sidered that  it  took  the  combined  negligence  of  the  master  and 
the  servant  who  was  directed  to  cut  off  the  flow  of  the  oil  to 
produce  the  injury,  and  that  the  master  was  liable."^ 

21  Lebanon     Light,     etc.,     Co.     v.  22  Chicago   Economic   Fuel   Co.    v. 

Leap,  139  Ind.  443;   39  X.  E.  Rep.  Myers.   168  111.   139;   48  N.  E.  Rep. 

57;  29  L.  R.  A.  342.  06;    affirming   64    111.    App.    270;    1 

A  mining  company  cannot  escape  Chic.  L.  J.  Wkly.  276. 

by  simply  placing  the  management  23  Pullman     Palace     Car     Co.     v. 

of  its  mining  in  charge  of  a  person  Laack.   143   111.   242;   32  X.  E.  Rep. 

under  a  written  contract,   in   which  285;    18  L.  R.  A.  215,   affirming  41 

such    person    is    called    a    "  lessee."  111.  App.  34. 

Consolidated  Coal   Co.   v.    Seninger,  The      action      may      be     brought 

79   111.   App.   456;    affirmed    179   111.  against     the     person     operating     a 

370;   53  X.  E.  Rep.  733.  plant,  although  another  person  built 


694  OIL    AND    GAS. 

§606,     Statute  permitting  recovery  although  there  is  no  negli- 
gence. 

A  statute  may  be  so  drawn  as  to  render  a  gas  company  liable 
for  damages  occasioned  by  an  explosion,  although  there  is  no 
negligence  on  the  part  of  the  defendant.  Thus  in  Ohio  a  statute 
with  reference  to  a  natural  gas  company  provided  that  it  "  shall 
be  liable  for  any  damages  that  may  result  from  the  transporta- 
tion of  "  natural  gas.  It  was  held  that  a  natural  gas  company 
transporting  natural  gas  was  liable  for  an  explosion,  under  this 
statute,  although  not  guilty  of  any  negligence  causing  the  ex- 
plosion, the  court  saying:  "Upon  principles  of  universal  ap- 
plication, the  company  would  be  held  liable  for  any  damages 
that  might  result  from  its  negligence  in  transporting  natural 
gas  through  the  streets  of  a  city.  4 Therefore,  to  construe  the 
statute  as  the  plaintiff  in  error  contends  would  deny  it  any 
operation  or  effect  whatever.  We  think  that  when  the  subtle 
and  dangerous  properties  of  this  fluid  are  considered,  together 
with  the  long  existing,  and  perhaps  still  unsettled,  controversy 
that  has  claimed  the  attention  of  courts  and  textwriters,  both 
in  England  and  in  this  country,  respecting  the  extent  of  the  lia- 
bility of  those  who  deal  in  dangerous  substances,  for  damages 
caused  by  them,  and  the  absence  of  the  word  '  negligent,'  in  the 
Act  declaring  the  liability  of  the  plaintiff  in  error  has  great 
significance,  and  can  only  be  reconciled  with  a  legislative  pur- 
pose to  impose  upon  the  company  the  duty  of  absolutely  con- 
trolling this  substance  when  it  should  introduce  it  into  places 
where,  if  it  escaped  control,  it  would  menace  the  lives  and  prop- 
erty of  others,  who  had  no  control  over  it,  and  were  without 
fault  themselves  contributing  to  injury."  ^* 


it.   where  the   action  is  based  on  a  ^  24  Ohio  Gas  Fuel  Co.  v.  Andrews, 

defective  construction  of  such  plant.  50    Ohio    St.    695;    35    N.    E.    Rep. 

Hyde  Park,  etc.,  Co.  v.  Porter,   167  1059;   29  L.  R.   A.  337.     See  Belvi- 

111.  276;  47  N.  E.  Rep.  206;  affirm-  dere    Gaslight    Co.    v.    Jackson,    81 

ing  64  111.  App.  152.  111.  App.  424. 


LEAKS    AND    EXPLOSIONS.  695 

§607.     Explosion  occasioned  by  a  violation  of  a  statute. 

A  gas  company  may  be  liable  for  an  injury  occasioned  by  a 
violation  of  a  statute  prescribing  regulations  to  be  observed  by 
it.  Such  was  held  to  be  the  case  where  a  company  failed  to  test 
its  pipes  to  a  pressure  of  four  hundred  pounds  to  the  square 
inch,  as  a  statute  required,  and  which  forbade  it  to  use  a  pres- 
sure of  over  three  hundred  pounds  in  conveying  gas.  The  gas 
escaped  because  the  pipes  did  not  come  up  to  the  test  pre- 
scribed."°  And  where  the  injury  was  occasioned  by  gas  escap-- 
ing  from  a  pipe  laid  by  the  company  on  the  surface  of  the 
higliway,  the  company  was  held  liable,  although  the  particular 
injury  could  not  have  been  foreseen.""  And  where  a  gas  com- 
pany unlawfully  laid  its  pipe  line  in  a  highway,  from  wdiich  gas 
escaped  and  entered  a  defective  water  pij>e  of  the  plaintiff  and 
polluted  the  water  in  his  well,  the  company  was  held  liable, 
and  it  could  not  escape  liability  by  showing  the  defect  in  the 
water  pipe.  "  Where  a  company,"  said  the  court,  "  chooses  for 
its  profit  to  bring  a  gas  pipe  upon  the  land,  they  must  keep  it 
there  at  its  own  peril."  It  is  no  answer  to  say,  "  Your  pipe  is 
bad,  and  the  gas  for  that  reason  got  into  it."  ^^ 

§608.     Laying  gas  main  in  navigable  river. 

It  is  an  illegal  act  to  lay  a  gas  main  on  the  bottom  of  a 
navigable  river,  without  sinking  it  beneath  the  soil  of  the  bot- 
tom ;  and  the  company  will  be  liable  for  all  the  consequences  of 
its  act  in  so  illegally  laying  its  pipe.  Thus,  where  a  gas  com- 
pany had  so  laid  its  pipe  on  the  bottom  of  a  river,  and  a  boat 
ran  against  it,  breaking  it,  whereby  gas  escaped  and,  igniting 

25  Alexandria  Mining,  etc..  Co.  v.  Gas  Co.,  84  L.  T.  765;  65  J.  P.  680. 
Irish,  16  Ind.  App.  534;  44  N.  E.  A  tenant  carrying  on  a  livery 
Rep.   680.  stable  without  taking  out  a  license 

26  Indiana  Natural,  etc.,  Co.  v.  required  by  an  ordinance  or  a  stat- 
McMath,  26  Ind.  App.  154;  57  N.  ute,  cannot  recover  damages  occa- 
E.  Rep.  593;  59  N.  E.  Rep.  287.  sioned  by  the  escape  of  gas,  even 
Lebanon,  etc.,  Co.  v.  Leap,  139  though  he  might  sustain  an  action 
Ind.  443 ;  39  N.  E.  Rep.  57 ;  29  L.  for  a  nuisance  to  real  estate.  Sher- 
R.  A.  342.  man  v.  Fall  River  Iron  Works  Co., 

27  Batcheller   v.    Tunbridge   Wells  5  Allen  213. 


696  OIL    AND    GAS. 

from  the  furnace  of  tlie  boat,  set  the  boat  on  fire,  it  was  held 
that  the  gas  company  was  liable  for  its  destruction. "**  But 
where  the  trailing  anchor  of  a  vessel  caught  and  injured  a  gas 
pipe  laid  upon  the  bed  of  a  navigable  river,  it  was  held  that  if 
the  captain  of  the  vessel,  upon  striking  the  pipe  could,  with 
proper  care  and  reasonable  precaution,  have  then  prevented  the 
injury,  the  owners  of  the  vessel  would  be  liable  for  all  injury 
which  could  thus  have  been  prevented. "° 

§609.     Overwhelming  disaster. 

Where  an  overwhelming  disaster  falls  upon  a  gas  company's 
works,  its  efforts  to  pTevent  injuries  to  the  public  must  be  meas- 
ured by  the  extent  of  the  disaster.  An  illustration  is  afforded 
by  the  great  fire  in  the  city  of  Boston,  J^ovember  0,  1872.  A 
gas  company's  mains  were  broken,  by  the  falling  buildings, 
causing  many  leaks ;  the  gas  esc;r|Ded  throughout  the  burnt 
district,  causing  frequent  explosions ;  and  it  escaped  into 
cesspools  and  sewers  in  dangerous  quantities.  Notwithstand- 
ing these  facts,  the  gas  company  on  the  subsequent  day  and  night 
continued  to  manufacture  gas  in  large  quantities ;  and  on  the 
morning  of  that  day  the  company  was  notified  by  a  porter  of 
a  building  that  gas  was  escaping,  and  especially  from  the  next 
adjoining  building.  The  company  had  many  valve  boxes  in 
the  vicinity  which  were  not  closed,  but  there  was  no  evidence 
that  the  fire,  Avhich  burnt  the  building,  for  which  the  suit  was 
brought  and  of  which  its  porter  had  given  notice  of  the  leak, 
was  caused  by  the  leak  of  which  the  company  was  notified  in 
the  morning,  or  that  by  shutting  the  valves  in  the  vicinity  the 
escape  of  gas  would  have  been  stopped,  or  that  it  was  practically 
possible  to  get  at  the  valves  for  that  purpose.  It  was  held  that 
there  was  no  evidence  of  negligence,  and  on  the  evidence  the 
jury  was  not  warranted  in  finding  for  the  plaintiff.      The  court 

28  Omslaer  v.  Philadelphia  Co.,  31  This    is   manifestly    correct,    for   no 

Fed.  Rep.  .354;   18  Pittsb.  L.  J.   (N.  *•  man  can  excuse  his  own  negligence 

S.)   4.  by   the   negligent   or    illegal    act   of 

20  Milwaukee      Gaslight      Co.      v.  another. 
Schooner    Gamecock,    23    Wis.    144. 


LEAKS    AXD    EXPLOSIONS.  697 

did  not  consider  it  was  the  duty  of  the  gas  company  to  shut  off 
the  gas  from  the  entire  city,  for  that  would  probably  have 
brought  a  train  of  disasters  to  the  inhabitants  and  caused  great 
inconvenience,  by  depriving  the  city  of  light  and  furnishing  an 
opportunity  for  thieves  and  thugs.  While  the  danger  was  great, 
requiring  of  the  company  great  vigilance  and  great  efforts  to 
prevent  injuries  to  persons  and  property,  yet  the  burden  de- 
volved upon  the  plaintiff  to  show  that  it  had  not  done  all  it 
could  do  and  that  it  could  have  prevented  the  explosion  and 
consequent  fire.  In  this  instance,  it  was  not  sufficient  to  show 
an  escape  of  gas,  an  explosion  and  a  resultant  damage,  for  neg- 
ligence could  not  be  inferred  from  proof  of  these  facts  alone. 
Something  more  was  required.''"' 

§610.     Burden  of  proof. 

The  plaintiff  necessarily  must  sustain  the  allegations  of  his 
complaint  or  declaration ;  and  this,  of  course,  casts  upon  him 
the  burden  to  prove  that  the  defendant  was  guilty  of  the  acts  of 
negligence  charged  therein.  In  this  respect,  cases  of  injuries  or 
damages  inflicted  by  gas  leaks  or  explosions  do  not  differ  from 
other  cases  of  negligence.  Facts  must  be  alleged  and  shown 
affirmatively  by  the  plaintiff  that  the  defendant  gas  company  by 
its  own  act  or  by  its  omission  has  violated  some  duty  incumbent 
upon  it  which  has  caused  the  injury  of  which  complaint  is 
made.^^  If  the  charge  be  that  the  defendant  gas  company  failed 
to  discharge  its  duty  in  keeping  its  mains  in  a  sound  and  safe 
condition  for  transmitting  gas,  the  burden  rests  upon  it  to  show 

30  Hutchinson  v.  Boston  Gaslight  Smith  v.  Boston  Gaslight  Co..  129 
Co.,  122  Mass.  219.  See  Koelsch  v.  Mass.  318;  \Yashington  Gaslight  Co. 
Philaaelphia  Co.,  152  Pa.  St.  355;  v.  EcklofT,  22  Wash.  L.  Rep.  G5G; 
25  Atl.  Rep.  522;  34  Am.  St.  Rep.  McGahan  v.  Indianapolis,  etc..  Gas 
653;  18  L.  R.  A.  759;  Consolidated  Co.,  140  Ind.  335;  37  N.  E.  Rep. 
Gas  Co.  V.  Crocker,  82  Md.  113;  33  601;  29  L.  R.  A.  355;  49  Am.  St. 
Atl.  Rep.  423;  State  v.  Consolidated  Rep.  199;  Hutchinson  v.  Boston 
Gas  Co.,  85  Md.  637;  37  Atl.  Rep.  Gaslight  Co.,  122  Mass.  219;  Straw- 
263.  bridge    v.    Philadelpliia.     13     Phila. 

31  Holly  V.  Boston  Gaslight  Co.,  173;  36  Leg.  Int.  276;  2  Penny. 
8    Gray     123;     69    Am.    Dec.     233;  419;    13   Rep.   216. 


698  OIL    AND    GAS. 

that  fact  in  order  to  recover.^-  Where  the  owner  of  a  house 
dug  a  tunnel  from  his  cellar,  under  the  street  pavement,  to  a 
sewer,  and  an  employee  of  the  city  searching  for  a  leak  in  front 
of  the  house,  not  knowing  that  there  was  a  tunnel  there,  lighted 
a  paper,  and  moved  it  along  the  surface  of  the  sidewalk,  that 
being  the  usual  method  of  discovering  leaks,  and  ignited  a  jet 
of  escaping  gas,  which  he  extinguished  by  covering  it  with  dirt ; 
and  five  minutes  after  an  explosion  occurred  in  the  cellar,  it 
was  held  that  the  city  was  not  liable.^^  And  where  the  evidence 
showed  that  an  employee  of  a  gas  company  went  into  the  cellar 
with  a  candle  to  fix  the  pipes  ;  that  soon  after  gas  began  to  escape 
in  large  quantities,  and  some  workmen  went  into  the  cellar  to 
rescue  the  employee,  who  had  become  unconscious ;  that  as  they 
were  about  to  pick  him  up  "a  big  flash  of  fire  came  around  us, 
and  scattered  all  over  the  floor,"  as  one  of  the  witnesses  testified  ; 
and  there  was  no  evidence  that  th^  employee  had  lighted  the 
candle,  or  had  any  other  light  with  him;  nor  any  evidence  as  to 
the  cause  of  the  explosion,  it  was  held  that  no  negligence  on 
the  part  of  the  gas  company  was  shown, ^* 

§611.     Presumption  of  neg-ligence  does  not  arise  from  proof  of  ex- 
plosion. 

What  will  be  sufficient  proof  to  make  a  prima  facie  case  of 
negligence  must  depend  on  the  particulars  of  each  particular 
case.  Courts  judicially  know  that  both  illuminating  and  nat- 
ural gas  is  highly  explosive  and  combustible,  and  that  it  will 
explode  when  ignited  by  fire."^     The  courts  will  also  take  judi- 

32  Holly   V.    Boston   Gaslight   Co..  35  Alexander   Mining,   etc.,   Co.   v. 

supra;  Siebrecht  v.  East  River  Gas  Irish,    16   Ind.   App.    534;    44   N.   E. 

Co.,  21  N.  Y.  App.  Div.  110;   47  N.  Rep.   680;    Brown  v.    Spillraan,    155 

Y.  Supp.  262;   Heh  v.  Consolidated  U.    S.    665;    15   Sup.   Ct.   Rep.   245; 

Gas   Co.,   201   Pa.   St.   443;    50   All.  Fuchs  v.  St.  Louis,  133  Mo.  168;  31 

Rep.  994;   88  Am.  St.  Rep.  819.  S.  W.  Rep.  115;   34  S.  W.  Rep.  508; 

33Littnian  v.  New  York  City,  36  34  L.  R.  A.  118    (gases  from  petro- 

X.  Y.  App.  Div.  189;  .55  N.  Y.  Supp.  leum). 

383;   affirmed  159  N.  Y.  559;   ,54  N.  But     it     will     not    take     iudicial 

E.  Rep.  1093.  notice  that  dry,  fine  coal  dust  is  a 

34  Schauni    v.    Equitable    Gaslight  dangerous     and     explosive    element. 

Co..  15  N.  Y.  App.  Div.  74;   44  N.  Cherokee,    etc.,    Co.    v.    Wilson,    47 

Y.  Supp.  284.  Kan.  460;  28  Pac.  Rep.  178. 


LEAKS    A:srD    EXPLOSIONS.  699 

cial  notice  that  gas  will  not  explode  unless  caused  by  some 
outside  agency,  as  the  introduction  of  fire  or  an  electric  spark ; 
and  also  that  it  can  be  confined  in  pipes  and  safely  conducted 
through  the  streets  to  the  consumer.  In  addition  to  this  is  the 
rule  that  gas  companies  distributing  gas  must  exercise  vigilance 
to  prevent  injury  to  persons  while  remaining  on  the  premises 
where  manufactured,  or  while  being  carried  through  its  own 
l)il>es  to  its  consumers,^"  and  the  vigilance  required  is  of  a  nmch 
higher  degree  where  the  pipes  are  laid  in  the  streets  of  a  densely 
populated  city  than  where  laid  in  the  country.^'  But  notwith- 
standing these  facts,  proof  of  the  explosion  and  the  resulting 
injury  will  not  establish  the  liability  of  the  gas  company.  It 
must  not  be  forgotten  that  the  cause  of  action  is  founded  upon 
the  negligence  of  the  defendant,  and  that  negligence  must  be 
shown  before  there  can  be  a  recovery.  Thus,  where  it  was 
shown  that  an  explosion  occurred  in  an  oil  refinery,  followed 
by  a  fire ;  that  the  burning  oil  ran  down  a  pipe  used  by  the  oil 
company  to  pump  oil  into  the  refinery  from  vessels  lying  at  the 
wharf,  and  entered  a  lighter  filled  with  oil,  which  exploded, 
communicating  the  fire  to  the  plaintiff's  vessel  about  twenty 
feet  distant,  the  fire  being  occasioned  by  the  explosion  of  a 
boiler,  called  an  "  agitator,"  used  in  the  refinery ;  but  there  was 
no  evidence  to  show  that  it  was  not  a  proper  boiler,  such  as 
was  generally  in  use,  or  that  the  explosion  was  occasioned  by  an 
improper  use  of  it,  or  that  it  was  defective.  On  this  evidence 
the  court  held  that  the  defendant  oil  company  was  not  liable,  as 
it  was  only  liable  for  its  negligence,  the  mere  fact  of  an  explo- 
sion not  raising  a  presumption  of  negligence.  The  court  was 
careful  to  call  attention  to  the  fact  that  there  was  no  contractual 
relation  between  the  plaintiff  and  defendant  —  as  there  is,  for 
instance,  between  a  passenger  and  the  railway  company  carry- 
ing him  —  and  quoted  an  established  work  on  negligence,  where 
it  is  said :  "  It  is  believed  that  it  is  never  true,  except  in  con- 
tractual relations,  that  the  proof  of  the  mere  fact  that  the  acci- 

36  Tiehr  v.  Consolidated  Gas  Co.,  st  Mississienawa     Mining    Co.     v. 

51  N.  Y.  App.  Div.  446;  65  N.  Y.  Patton,  129  Ind.  472;  28  N.  E.  Rep. 
Supp.    10.  1113;   28   Am.  St.  Rep.  203. 


700  OIL    AND    GAS. 

dent  happened  to  the  plaintiff,  without  more,  will  amount  to 
prima  facie  proof  of  negligence  on  the  part  of  the  defendant."  ^* 
"  We  are  of  the  opinion  that  the  evidence  presented  by  the 
plaintiffs  failed  to  establish  a  cause  of  action  against  the  de- 
fendant, and  consequently  that  the  trial  court  erred  in  denying 
the  motion  to  dismiss  the  complaint  made  after  plaintiffs  had 
rested  their  case.  The  fact  that  the  injury  sustained  by  the 
plaintiffs  may  have  been  a  direct  result  of  the  fire  which  origi- 
nated upon  the  premises  of  the  defendant  does  not  of  itself 
render  it  liable  to  respond  in  damages  therefor.  The  defendant 
was  not  maintaining  a  nuisance.  Its  business  was  lawful,  and, 
in  its  conduct,  the  law  does  not  impose  the  obligation  of  saving 
harmless  others  from  the  consequences  resulting  from  the  occur- 
rence of  inevitable  accident,  but  rather  burdens  it  simply  with 
the  duty  of  using  reasonable  care  and  caution  to  save  others 
from  injury.  If  it  omitted  that  dujiy,  and  failed  to  observe  that 
ordinary  care  which  was  incumbent  upon  it,  then,  because  of 
such  neglect,  it  became  legally  chargeable  with  the  damages 
directly  resulting  therefrom,  but  not  otherwise.  As  the  existr 
ence  of  negligence  is  an  affirmative  fact  to  be  established  by 
him  who  alleges  it  as  a  foundation  of  his  right  of  recovery,  it 
was  incumbent  upon  the  plaintiffs  to  point  out,  by  evidence,  the 
defendant's  fault,  for  the  presumption  is,  until  the  contrary  ap^ 
pears,  that  every  man  has  performed  his  duty.  This  rule  has 
been  frequently  applied  in  cases  where  a  fire  has  spread  over 
and  upon  the  lands  of  an  adjoining  owner  to  his  damage.  It 
has  likewise  been  enforced  against  persons  seeking  to  recover 
for  damages  sustained  by  fires  originating  from  locomotives  in 
operation  upon  railroads.  But  the  plaintiffs  insist  that,  while 
negligence  cannot  be  inferred  from  the  fact  that  the  fire  origi- 
nated upon  the  premises  of  the  defendant,  it  may  be  presumed 
from  the  proof  of  an  explosion.  It  is  difficult  to  discover  a 
reason  for  holding  that  proof  of  the  occurrence  of  a  destructive 
fire  in  defendant's  premises  does  not  raise  a  presumption  of 
negligence,  while  proof  of  the*mere  fact  of  an  explosion  does. 
It  has  been  said  that  there  is  a  general  disposition  among  men 

38  2  Thomp.  Neg.  Sec.  1227. 


LEAKS    AND    EXPT.OSIOlSrS. 


"01 


to  preserve  their  property,  and  escape  liability,  and  that  ordi- 
narily these  motives  will  secure  that  degree  of  care  and  caution 
which  the  safety  of  the  public  demands,  and  hence  the  pre- 
sumption of  duty  performed,  which  in  cases  of  fire  will  protect 
him  until  the  facts  be  proven  from  which  negligence  can  be  in- 
ferred. For  precisely  the  same  reason  he  is  entitled  to  the 
benefit  of  such  presumption  in  the  case  of  an  explosion,  where 
no  contractual  relation  exists ;  and  the  plaintiffs  must  go  one 
step  further,  and  prove  the  facts  from  which  it  can  be  legiti- 
mately inferred  that  either  in  construction,  repair,  or  operation, 
he  omitted  that  reasonable  care  and  caution  which  he  should 
have  observed."  ^^ 


39  Cosulich  V.  standard  Oil  Co., 
122  N.  Y.  118;  25  N.  E.  Rep.  259, 
reversing  55  N.  Y.  Super.  Ct.  Rep. 
384.  To  support  its  conclusion  the 
court  cited  Walker  v.  Chicago,  etc., 
R.  R.  Co.,  71  la.  658;  33  N.  W. 
Rep.  224  (an  explosion  of  dyna- 
mite) ;  Huff  V.  Austin,  46  Ohio  St. 
386;  21  N.  E.  Rep.  804  (an  explo- 
sion of  a  steam  boiler)  ;  Young  v. 
Bransford,  12  Lea.  232  (an  explo- 
sion of  a  steam  boiler)  ;  and  re- 
fused to  follow  Rose  V.  Stephens, 
etc..  Transportation  Co.,  11  Fed. 
Rep.  438;  20  Blatchf.  411.  Followed 
in  Reiss  v.  Steam  Co.,  128  N.  Y. 
103;  28  N.  E.  Rep.  24;  Loeber  v. 
Roberts,  17  N.  Y.  Supp.  378;  Bab- 
cock  V.  Fitchburg  R.  R.  Co.,  140 
N.  Y^  308;  35  N.  E.  Rep.  506; 
Losee  v.  Buchanan,  51  N.  Y.  476 
(steam  boiler  exploding)  ;  Morris 
V.  Southworth,  154  111.  118;  39  N. 
E.  Rep.  1099;  Marshall  v.  Welwood, 
38  N.  J.  L.  339;  Washington  Gas- 
light Co.  V.  Eckloff,  4  App.  D.  C. 
174  (error  to  charge  the  injury  that 
an  unusual  explosion  on  the  prem- 
ises was  prima  facie  evidence  of 
negligence)  ;  Lee  v.  Vacuum  Oil  Co., 
54  Hun  156;   7  N.  Y^  Sup.  426. 

The  mere  fact  that  a  building  was 


set  on  fire  from  gas  is  not  sufficient 
to  justify  the  inference  that  an  in- 
creased pressure  of  gas  caused  the 
fire.  Barrickman  v.  Marion  Oil  Co., 
45  W.  Va.  6.34;  32  S.  E.  Rep.  327; 
44  L.  R.  A.  92. 

Mere  ownership  of  gas  in  the 
pipes  does  not.  of  itself,  render  the 
owner  liable  for  injuries  caused  by 
escaping  gas,  if  the  company  is  in 
no  manner  guilty  of  negligence. 
People's  Gaslight  Co.  v.  Amphlett, 
93  111.  App.  194. 

The  explosion  of  a  hot-water  radi- 
ator in  a  room  in  a  railroad  hotel 
does  not  raise  a  presumption  of 
negligence  on  the  part  of  the  lessor, 
who  had  charge  of  the  apparatus, 
toward  a  waiting  passenger.  Kirby 
v.  Delaware,  etc.,  R.  R.  Co.,  20  N. 
Y.  App.  Div.  473;  46  N.  Y.  Supp. 
777. 

A  jury  may  find  negligence  from 
the  breaking  of  a  gas  main  and  the 
consequent  escape  of  gas;  but  it  is 
for  the  jurors  to  say  whether  thc7 
will  do  so,  and,  if  there  are  other 
circumstances  bearing  on  the  ques- 
tion, they  must  weigh  them  all.  In- 
structions that  evidence  "  is  suffi- 
cient to  show,"  or  "  has  a  tendency 
to  show,"  or  is  "  enough  to  show  " 


702  «  OIL    AND    GAS. 

S612.     Presumption  of  negligence  arising-  from  proof  of  explosion. 

jSTot  in  all  jurisdictions  does  the  rnlo  prevail  that  has  been 
announced  in  ]^ew  York.  The  United  States  Court  for  the 
Southern  District  of  that  State  refused  to  follow  that  rule,  and 
adopted  the  rule  that  an  explosion  of  oil  in  a  building  was  prima 
facie  evidence  of  negligence  on  the  part  of  the  defendant.  "  In 
the  Court  of  Appeals  of  this  State,"  said  District  Judge  Brown, 
'^  it  was  held  that  an  explosion  in  a  building,  unaccompanied 
by  any  explanation  by  the  owner,  or  by  any  evidence  of  care 
on  his  part,  furnishes  no  presumption  of  negligence  "  ;  *"  and 
this  was  reaffirmed  in  Eeiss  v.  Steam  Company.*^  The  oppo- 
site conclusion,  held  by  Judge  Wallace,*^  seems  to  me  to  be  more" 
sensible  and  just,  and  more  in  accordance  with  legal  principles 
and  analogies.  The  same  ruling  was  made  on  appeal  in  the 
Circuit  Court.*^  This  ruling  is  based  upon  the  principle  (of 
wide  application  in  the  law  of  t^ts),  that  injuries  which  do 
not  ordinarily  happen  when  reasonable  and  proper  care  is  taken 
to  avoid  them,  afford  a  presumption  of  negligence,  and  place 
upon  the  defendant  the  burden  of  proof  that  ordinary  and  rea- 
sonable care  was  taken  to  avoid  the  accident ;  and  also  upon  the 
princijile  of  evidence^  that  he  who  has  peculiarly  within  his 
power  the  means  of  producing  evidence  of  reasonable  care,  shall 
be  required  to  produce  it."  The  opinion  concludes,  however: 
"  The  cause  of  the  accident  is,  in  fact,  unexplained.  Either  an 
accidental  fire,  or  some  violation  of  the  rules  by  workmen  in 
smoking,  or  carrying  a  light,  seem  the  only  imaginable  causes. 

or  "  is  prima  facie  evidence  of,"  are  51   N.  Y.  App.  Div.  446 ;   65  N.  Y. 

not   to    be    understood    as    meaning  Supp.   10. 

that  there  is  a  presumption  of  fact,  4o  Citing  Cozulich  v.  Standard  Oil 

but  that  the  jury  are  at  liberty  to  Co.,   122  N.  Y.   118;    25  N.  E.  Rep. 

draw  the  inference  from  them.    Car-  259. 

mody   V.    Boston    Gaslight   Co.,    162  4i  128  N.  Y.   103;   28  N.  .E.  Pv.ep. 

Mass.    539;     39    N.    E.    Rep.    184;  24. 

Smith   V.   Boston   Gaslight  Co.,   129  42  Citing   Rose   v.    Stephens,    etc., 

Mass.   318.      (See  this  case  noticed  Transportation    Co..    11    Fed.    Rep. 

in  section  610)  ;  Hutchinson  v.  Bo(»^  438;   20  Blatchf.  411. 

ton    Gaslight    Co.,    122    Mass.    219.  43  Citing    The    Sydney,    27     Fed. 

(See     this    case    noted     in    section  Rep.   119,   123. 

609)  ;  Tichr  v.  Consolidated  Gas  Co., 


LEAKS    AXD    EXPLOSIONS.  -  703 

.  .  .  The  evidence  offered  by  the  defendants  shows  a  busi- 
ness not  specially  dangerous  when  prosecuted  with  reasonable 
care ;  that  there  were  suitable  regulations,  arrangements,  and 
reasonable  care  exercised ;  and  that  there  was  no  neglect  by  the 
defendants  to  enforce  such  regulations.  I  think  this  suffi- 
ciently rebuts  the  prima  facie  presumption  of  negligence;  and 
on  this  ground  the  libel  should  be  dismissed,  but  without 
costs."  " 

§613.     Stop-cock  on  street  line. 

Unless  some  statute  (or  perhaps  a  municipal  ordinance) 
requires  it,  a  gas  company  is  not  required  to  place  a  stop- 
cock at  the  street  line,  or  outside  the  building  supplied,  so  it  can 
shut  off  the  gas  without  entering  the  premises  when  necessary ; 
and  if  the  stop-cock  is  placed  within  the  building  supplied,  the 
company  is  not  required  to  enter  and  cut  off  the  supply  when 
notified  by  the  consumer  to  discontinue  the  gas.  In  such  an 
instance  it  is  the  duty  of  the  owner  of  the  building,  or  the  tenant 
if  in  possession,  to  cut  off  the  supply  by  turning  the  stop-cock.*^ 
Where  the  stop-cock  in  a  supply  pipe  outside  of  a  mill  supplied 
with  gas  had  been  covered  up  by  a  third  person  and  could  not 
be  used  to  turn  off  the  gas  during  a  fire  in  the  mill,  it  was  held 
that  the  owner  of  the  building  could  not  recover  from  the  person 
who  had  covered  it  up  where  the  mill  took  fire  from  an  inde- 
pendent cause,  and  the  owner  had  allowed  the  stop-cock  to  re- 
main covered  more  than  a  year ;  for  the  inability  to  use  the 
stop-cock  was  not  the  proximate  cause  of  the  injury,  although 

4*  Warn  v.  Davis  Oil  Co.,  61  Fed.  and    operation    of   its    plant,    using 

Rep.  631 ;   Judson  v.  Giant  Powder  the   most    and   best  machinery   and 

Co.,    107    Cal.    549;    40    Pac.    Rep.  appliances,    and   did   all    a    prudent 

1020;    29    L.    R.    A.    718;    Dunlap  person  could  do  to  prevent  gas  es- 

Steamboat  v.  Reliance,  2   Fed.  Rep.  caping.    did    not,    of   itself,   in   case 

249 ;  Grimsley  v.  Hawkins,  46  Fed.  actual    damage    resulted    to    others, 

Rep.  400   (boiler  explosion).  relieve  the  company  from  liability. 

In    Belvidere    Gaslight    and    Fuel  See  also  Rockford  Gaslight,  etc.,  Co. 

Co.  V.  Jackson,  81   Til.  App.  424,  it  v.  Ernst,  68  111.  App.  300. 
was  held   that   the   fact  of   the  gas  45  Holden   v.    Liverpool    Gas    Co., 

company   using   all    reasonable   and  3  C.   B.   1 ;   15  L.  J.  C.  P.  301 ;    10 

proper   precautions   in   the   erection  Jur.  883. 


704  .  OIL    AND    GAS. 

the  damages  may  have  been  increased  by  the  escaping  gas  in- 
creasing the  flames.'*'' 

§614.     Intervening  agency. 

A  gas  company  is  bound  to  know  the  consequences  that  will 
probably  follow  its  act  of  negligence ;  as,  for  instance,  the  use 
of  defective  pipes  and  the  turning  of  gas  into  them,  especially 
at  a  high  pressure.  In  an  instance  of  use  of  such  pipes  and  the 
maintenance  of  a  high  pressure,  and  gas  escaped  and  an  explo- 
sion followed,  it  was  said  that  it  was  not  necessary  to  charge  in 
the  complaint  that  the  gas  company  had  special  knowledge  or 
notice  of  the  happening  of  such  consequences  flowing  from  its 
original  negligence,  in  the  order  in  which  it  occurred.  "  No 
principle  is  better  settled,"  said  the  court,  "  than  the  one  that 
every  person  who  is  sui  juris  is  presumed  to  know  and  in  duty 
bound  to  anticipate  the  natural  arid  usual  consequences  flowing 
from  his  unlawful  acts  or  omissions.  The  only  serious  trouble 
that  sometimes  arises  in  the  application  of  this  principle  is  in 
determining  whether  or  not  a  given  result  may  be  said  to  be  such 
a  natural  and  ordinary  one  as  to  be  properly  chargeable  to  the 
defendant's  negligent  act  or  omission,  and  this  is  what  has  given 
rise  to  the  doctrine  of  proximate  cause.  The  negligence  of  the 
defendant  must  be  the  proximate  cause  of  the  injury,  and  it  is 
the  proximate  cause  thereof,  if  it  can  be  properly  said  to  have 
produced  the  result  complained  of,  in  natural  and  continuous 
sequence,  unbroken  by  any  efficient  intervening  cause.  The 
negligence  charged  may  be  the  pTOximate  cause,  although  not 

46  Cochran    v.    Philadelphia,    etc.,  cut  off  the  gas  when  its  use  is  dis- 

Co.,   184  Pa.  St.   565;   39  All.  Rep.  continued,    or    if    it    undertake    to 

296.  close    the    aperture    in    the    service 

Where  it  is  alleged  a  leak  oo-  pipe  and  does  it  so  gas  escapes,  it 
curred  at  a  certain  place,  evidence  will  be  liable  for  an  explosion  oc- 
as to  whether  a  stop-cock  on  the  casioned  by  the  gas  escaping  be- 
top  of  an  upright  pipe  is  a  danger-  cause  of  the  imperfect  work.  To 
ous  method  of  shutting  off  the  gas  undertake  to  do  the  work,  and  to 
must  be  rejected.  State  v.  Consoli-  do  it  imperfectly,  is  such  an  act  of 
dated  Gas  Co.,  85  Md.  637 ;  37  Atl.  negligence  as  will  render  the  com- 
Rep.  263.  pany  liable.     Lanigan  v.  New  York, 

If    a     gas     company     imperfectly  etc.,  Co.,  71  N.  Y.  29. 


LEAKS    AXD    EXPI-OSIOXS. 


ro5 


the  immediate  one ;  it  is  enough  if  it  he  the  efficient  cause  which 
set  in  motion  the  chain  of  circumstances  leading  up  to  the  in- 
jury." *'  Abundance  of  illustrations  will  he  found  in  these 
pages  of  the  principle  thus  laid  down.*^  Where  a  complaint  al- 
leged that  the  gas  company  negligently  failed  to  turn  off  the 
gas  from  a  tenement,  after  directions  so  to  do,  in  order  that  a 
defect  in  the  pipe  within  the  cellar  might  be  located  and  re- 
paired; and  that  the  plaintiff,  a  plumber,  while  searching  for 
the  defect,  was  injured  by  an  explosion,  it  was  held  that  it  did 
not  show  the  injury  was  the  proximate  cause  of  the  gas  com- 
pany's negligence ;  for  there  was  a  presumption  that  there  had 
been  an  interyening  responsible  agency,  for  which  such  com- 
pany was  not  responsible/^ 


§615.     Inspection  of  pipes  or  mains. 

A  gas  company  is  chargeable  wdth  notice  of  the  fact  that  gas 
pipes  and  mains  are  liable  to  rust  and  decay,  and  by  reason  of 


*7  Alexandria  Mining,  etc.,  Co.  v. 
Irish,  16  Ind.  App.  534;  44  X.  E. 
Rep.  680. 

48  An  illustration  came  under  the 
personal  observation  of  the  writer. 
Natural  gas  escaped  from  a  street 
main  and  entered  a  sewer.  The  gas 
company  were  negligent  in  permit- 
ting it  to  escape.  It  flowed  along 
the  sewer  until  it  came  to  a  man- 
hole in  the  street,  and  escaped ;  and 
a  horse's  iron  shoe  striking  upon 
the  asphalt  pavement  surrounding 
the  man-hole  produced  a  spark  of 
fire  which  ignited  the  gas  escaping 
from  the  man-hole.  An  explosion 
was  thereby  occasioned  and  the 
horse  injured.  The  gas  company 
settled  for  the  injury  occasioned  by 
the   explosion. 

Anotner  case  came  under  the  Avrit- 
er's  notice  somewhat  illustrating 
the  subject  of  this  section.  The  case 
was  in  the  Federal  Circuit  Court  of 
Indiana.    A  plumber  took  a  key, — 


which  was  about  six  feet  long, —  to 
turn  oft  water,  at  the  property  line, 
of  a  city  water  company.  He  got 
on  the  front  end  of  an  open  street 
railway  car  drawn  by  horses,  with 
nothing  between  him  and  the  driver. 
In  handling  the  brake  the  driver  let 
it  loose  in  the  usual  way.  when  the 
handle  flew  around,  struck  the  key 
in  the  plumber's  hand,  and  knocked 
it  from  his  grasp.  The  key  struck 
the  hammer  of  a  revolver  in  the 
driver's  pantaloons'  hip-pocket, 
causing  the  revolver  to  go  ofl'.  The 
bullet  from  the  revolver  lodged  in 
the  brain  of  the  plumber,  killing 
him  instantly.  It  was  illegal  for 
the  driver  to  carry  a  revolver,  and 
contrary  to  the  street  railway  com- 
pany's orders ;  but  the  company  was 
held  liable. 

*!>  McGahon  v.  Indianapolis,  etc., 
Co.,  140  Ind.  335;  37  N.  E.  Rep. 
601 ;  29  L.  R.  A.  355. 


706  OIL    AND    GAS. 

such  rusting  or  decaying  permit  gas  to  escape.^"  They  are  also 
chargeable  with  notice  of  the  liability  of  pipes  and  mains  laid 
in  streets  to  become  broken  by  reason  of  the  travel  in  the  streets 
or  of  the  settling  of  the  earth,  especially  when  sewers  have  been 
or  are  being  constructed  or  other  pipes  laid  therein,  or  the 
streets  are  being  repaired.  And  in  these  modern  times  when 
the  use  of  electricity  has  become  so  universal  there  is  no  doubt 
that  they  are  chargeable  with  notice  of  its  effect  upon  iron  or 
steel  pipes,  and  its  tendency  to  destroy  the  fibres  of  the  iron  or 
steel,  weaken  the  pipes  and  render  them  unsafe  instruments  for 
the  conveyance  of  gas.^^  Being  thus  chargeable,  a  duty  de- 
volves upon  gas  companies  to  inspect  their  pipes  and  mains  and 
the  connections  therewith.  It  must  use  reasonable  care  in  mak- 
ing these  inspections ;  and  if  a  leak  could  have  been  discovered 
and  prevented  by  such  an  inspection,  that  fact  of  itself  will  be 
sufficient  to  charge  the  company  ijvith  negligence,  if  it  fail  to 
make  the  inspection.^'  And  this  is  true  of  a  company  that  pur- 
chases the  plant  of  another  company,  with  respect  to  such  plant ; 
for  its  liability  is  not  dependent  on  its  knowledge  of  the  pipes' 
defective  condition,  or  escaping  gas ;  but  upon  its  care  in  keep- 
ing the  pipes  in  a  reasonably  safe  condition,  and  using  them 
so  as  to  not  unnecessarily  injure  persons  and  their  property.^^ 
It  has  been  held  that  it  is  a  question  for  the  jury  whether  a  gas 
company  which  had  no  system  of  inspection,  but  waited  for 
complaints  before  ordering  an  inspection,  to  detect  a  leak  in 
the  pipes,  is  chargeable  with  negligence.^*  In  a  Pennsylvania 
case   it  was  said :     "  While  no  absolute  standard  of  duty  in 

50  Pritchard  v.  Consolidated  Gas  51  N.  Y.  App.  Div.  446;  65  N.  Y. 
Co.,  2  Pa.  Super.  Ct.  179;  39  W.  N.  Supp.  10;  Consolidated  Gas  Co.  v. 
C.  28.  Crocker,   82  Md.   113;    33  Atl.   Rep. 

51  Siebrecht  v.  East  River  Gas  423;  31  L.  R.  A.  785;  Koplan  v. 
Co.,  21  N.  Y.  App.  Div.  110;  47  Boston  Gaslight  Co.,  177  Mass.  15; 
N.  Y.  Supp.  262;  Koplan  v.  Boston  58  N.  E.  Rep.  183. 

Gaslight  Co.,   177  Mass.   15;   58   N.  53  Dow     v.     Winnipesaukee     Gas, 

E.  Rep.  183.  etc..  Co.,  69  N.  H.  312;  41  Atl.  Rep. 

52  Pine  Bluff,  etc.,   Co.  v.  Schnei-       288;  42  L.  R.  A.  569. 

der,    62   Ark.    109;    34    S.   W.   Rep,  54  Pritchard    v.    Gas    Co.,    2    Pa. 

547;    33    L.    R.    A.    366;    Rockford  Sup.  Ct.  Rep.  179 ;  Pritchard  v.  Gas 

Gaslight  Co.  v.  Ernst,  68   111.  App.  Co.,  39  W.  N.  Cas.  28. 
300;  Tiehr  v.  Consolidated  Gas  Co., 


LEAKS    AXD    EXPLOSIOXS. 


707 


dealing  with  siicli  agencies  can  be  prescribed,  it  is  safe  to  say, 
in  general  terms,  that  every  reasonable  precaution  suggested  by 
experience  and  the  known  dangers  of  the  subject  ought  to  be 
taken.  This  would  require,  in  the  case  of  a  gas  company,  not 
only  that  its  pipes  and  fittings  should  be  of  such  material  and 
workmanship,  and  laid  in  the  ground  with  such  skill  and  care, 
as  to  provide  against  the  escape  of  gas  therefrom  when  new,  but 
that  such  system  of  inspection  should  be  maintained  as  would 
insure  reasonable  promptness  in  the  detection  of  all  leaks  that 
might  occur  from  the  deterioration  of  the  material  of  the  pipes 
or  from  any  other  cause  within  the  circumspection  of  men  of 
ordinary  skill  in  the  business.®^  It  requires  nothing  unreason- 
able —  it  does  not  require  that  the  company  shall  keep  up  a  con- 
stant inspection  all  along  its  lines,  without  reference  to  the  ex- 
istence or  non-existence  of  probable  cause  for  the  occurrence  of 
leaks  or  escape  of  gas."  ^'^  Where  the  company  could  have  dis- 
covered the  defect  in  its  pipe  by  the  smell  of  the  escaping  gas, 
if  it  had  made  a  proper  inspection,  it  was  held  that  it  was  no  de- 
fense in  the  company  to  show  that  it  sent  a  workman  to  repair 
the  pipe  as  soon  as  it  had  notice  of  the  leak,  he  arriving  too  late 
to  do  so.^^  Of  course,  a  gas  company  is  required  only  to  inspect 
its  own  pipes  and  apparatus. *^^  Strictly  speaking,  it  has  no 
right  to  enter  upon  private  premises,  except  in  so  far  as  its  own 
projierty  extends ;  but  the  usual  contract  between  a  gas  company 
and  a  consumer  gives  them  the  right  to  enter  the  premises  and 
inspect  the  gas  apparatus,  not,  however,  imposing  upon  it,  in 
terms,  a  duty  to  inspect.     There  is  no  doubt  that  if  a  gas  com- 

55  Citing  Kibele  v.  City  of  Phila-  57  Mose  v.    Hastings,   etc.,   Co.,   4 

delphia,    105    Pa.    St.   41;    Holly   v.  F.  and  F.  324;   13  Gas  J.  231;   Sie- 

Gaslight  Co.,   8  Gray  123;   69  Am.  brecht   v.    East    River   Gas   Co.,   21 

Dec.  273;  Smith  v.  Gaslight  Co.,  129  N.  Y.  App.  Div.  110;  47  N.  Y.  Supp. 

Mass.  318.  262;    Consumers'    Gas    Co.    v.    Cor- 

5  6  Koelsch     V.     Philadelphia     Co.,  baley,    14   Ind.   App.   549;    43   N.  E. 

152  Pa.  St.  355;   25  Atl.  Rep.   522;  Rep.  237. 

34   Am.   St.  Rep.  653;    18  L.  R.  A.  *57  United    Oil    Co.    v.    Roseberry 

759 ;  quoted  in  Consolidated  Gas  Co.  (Colo.),    69    Pac.    Rep.    588.      See 

V.    Crocker,    82    Md.    112;    33    Atl.  Smith    v.    Pawtucket    Gas    Co.,    25 

Rep.   423;    31   L.   R.   A.   785;    State  R.  I.  — ;  52  Atl.  Rep.  1078. 
\.    Consolidated    Gas    Co.,    85    Md. 
637;  37  Atl.  Rep.  263. 


708  OIL    AND    GAS. 

pany  undertake  the  inspection  of  the  pipes  and  gas  fixtures  of 
a  house  or  building  they  are  bound  to  exercise  diligence  in  dis- 
covering leaks  or  escaping  gas,  the  same  as  if  they  were  their 
own  pipes  and  fixtnres.^^  A  gas  company  may  insist  upon  the 
right  to  enter  on  the  premises  and  inspect  the  pipes  and  gas 
fixtures,  before  turning  on  a  supply  of  gas,  to  see  if  they  are  in 
a  fit  condition  to  receive  it ;  "^^  but  it  in  fact  is  not  bound  to  do  so, 
for  it  may  take  the  property  owner's  assurance  that  all  things 
have  been  made  safe  for  its  reception,  or  it  may  refuse  to  fur- 
nish him  gas,  imless  it  be  given  the  right  to  inspect.  If,  there- 
fore, after  such  assurance  the  company  should  turn  on  the  gas, 
which  should  escape  at  a  point  beyond  the  place  where  the  com- 
pany's duty  to  inspect  ceases,  and  from  the  escaping  gas  an  ex- 
plosion occur,  the  neglect  would  be  that  of  the  property  owner, 
and  not  that  of  the  gas  company.^**  An  English  case  furnishes 
an  illustration  on  this  point.  The  plaintiff  was  the  owner  of 
a  new  house,  which  was  divided  into  two  separate  flats,  an 
upper  and  lower  one,  each  flat  having  a  separate  entrance  from 
the  street.  When  he  built  the  house,  the  plaintiff  put  in  a 
service  pipe  from  the  street,  running  it  under  the  hall  door  steps 
inside  the  wall  of  the  house  to  the  upper  flat.  The  tenant  of 
the  upper  flat  gave  notice  to  the  gas  company  to  supply  his  flat 
with  gas ;  and  thereupon  the  company  made  connection  between 
its  uiain  in  the  street  and  the  service  pipe,  supplied  and  fixed  a 
meter  in  the  flat,  and  turned  on  the  gas.  Owing  to  a  defect 
in  the  service  pipe,  which  the  plaintiff  had  supplied,  leading  to 
the  meter,  gas  escaped  and  exploded,  injuring  the  house,  about 
an  hour  after  it  was  turned  on.  In  a  suit  to  recover  damages 
for  injuries  to  the  house,  the  court  ruled  that  there  was  no  duty 
resting  on  the  gas  company  to  test  the  service  pipe;  and  the  jury 
having  found  that  proper  connection  had  been  made  by  the  coni- 
es Lannen  v.  Albany  Gaslight  Co..  Gas  Co.,  27  N.  Y.  App.  Div.  584 ; 
46  Barb.  264;  44  N.  Y.  459;  Fergu-  50  N.  Y.  Supp.  537. 
son  V.   Boston  Co.,   170  Mass.   182;  59  Flint     v.     Gloucester     Gaslight 

49  N.   E,   Rep.    115.     See  Vallee  *s       Co.,  3  Allen  343;   9  Allen  552. 
qualite  v.  New  City  Gas  Co.,  7  Am.  <">o  Holden  v.  Liverpool  Gas  Co..  3 

Law  Rev.  767;  Bastian  v.  Keystone       C.  B.  1 ;  15  L.  J.  C.  P.  301;  10  Jur. 

883. 


LEAKS    AXD    EXPLOSIONS. 


TOO 


pany  between  its  main  and  tlie  service  pipe,  judgment  was  given 
for  it,  the  court  not  sustaining  the  plaintiff  in  his  contention 
that  if  the  company  choose  to  use  a  pipe  not  laid  by  it,  it  was  its 
duty  to  see  if  it  were  in  good  condition. ^^  If  the  gas  company 
had  put  in  the  defective  service  jupe,  there  would  have  been  no 
doubt  of  its  liability  to  the  plaintiff."" 

§616.     Duty  to  make  repairs  immediately. —  Available  force. 

It  is  not  only  the  duty  of  a  gas  company  to  institute  and  main- 
tain an  ethcient  system  of  oversight  and  superintendence,  but 
to  be  prepared  with  sufficient  force  ready  to  put  in  action  and 
fully  competent  to  supply  and  furnish  a  prompt  remedy  for  ac- 
cidents, defects,  and  the  like.*'^  This  rule  requires  the  company 
to  take  all  necessary  steps  to  prevent  damages  that  may  be  occa- 
sioned by  a  leak  as  soon  as  it  has  knowledge  of  it;  and,  as  else- 
where stated,  it  may  be  guilty  of  negligence  in  not  discovering 
such  leak.  If  it  has  no  knowledge  of  the  leak  until  informed 
of  it,  and  has  not  been  otherwise  guilty  of  negligence  —  as,  for 


61  Henderson  v.  New  Castle,  etc., 
Gas  Co..  37  Sol.  J.  403. 

62  Burrows  v.  Marsh  Gas  and 
Coke  Co.,  L.  R.  7  Exch.  96;  41  L.  J. 
Exch.  46;  26  L.  T.  318;  20  W.  R. 
493. 

When  the  evidence  showed  negli- 
gence on  the  part  of  the  gas  com- 
pany, the  admission  of  opinion  evi- 
dence as  to  whether  an  inspection 
should  have  been  made  was  held 
not  judicial  error.  United  Oil  Co. 
V.  Roseberry  ( Colo. ) ,  69  Pac.  Rep. 
588. 

Whether  or  not  a  gas  company  is 
guilty  of  negligence  in  not  inspect- 
ing a  house  that  has  been  vacant  for 
nearly  a  month,  is  a  question  for 
the  jury.  Baltimore  Consolidated 
Gas  Co.  V.  Getty  (Md.),  54  Atl. 
Kep.  660. 

If  an  agent  of  a  gas  company 
testifies  that  he  inspected  the  prem- 


ises and  did  not  find  gas  escaping 
in  dangerous  quantities;  a  witness 
may  testify  that  he  told  him  at  the 
time  that  there  was  gas  enough  in 
the  cellar  to  blow  up  the  house  if 
he  would  go  down  into  it  with  a 
light,  in  order  to  contradict  him. 
Hunt  V.  Lowell  Gaslight  Co..  3  Al- 
len 418. 

63  Holly  V.  Boston  Gaslight  Co., 
8  Gray  123;  69  Am.  Dec.  233: 
Rockford,  etc.,  Co.  v.  Ernst,  68  111. 
App.  300;  Belvidere,  etc.,  Co.  v. 
Jackson,  81  111.  App.  424;  Barrick- 
man  v.  Marion  Oil  Co.,  45  W.  Va. 
634 ;  32  S.  E.  Rep.  327 ;  44  L.  R.  A. 
92;  Otersbach  v.  Philadelphia.  161 
Pa.  St.  Ill;  28  Atl.  Rep.  991;  An- 
derson V.  Standard  Gaslight  Co.,  40 
N.  Y.  Supp.  671;  17  X.  Y.  Misc. 
Rep.  625;  Pine  BluflP.  etc..  Co.  v. 
Schneider.  62  Ark.  109;  34  S.  W. 
Rep.  547;   33  L.  R.  A.  366. 


710  OIL    AND    GAS. 

instance,  not  having  used  proper  piping,  or  maintained  a  proper 
system  of  inspection  —  its  liability  will  depend  upon  the  ques- 
tion whether  or  not  it  has  used  due  diligence  to  prevent  the  in- 
jury after  it  has  received  notice  of  the  leak.  The  liability  of 
the  company  turns  upon  the  question  whether  it  has  used  due 
care  to  prevent  an  injury  after  it  has  notice  of  the  danger ;  and 
the  care  it  must  use,  whether  due  care,  must  be  measured  by  the 
possibility  and  likelihood  of  an  injury  being  inflicted.***  In  an 
instance  of  this  kind  evidence,  in  defense,  of  the  compan}''^  sys- 
tem and  course  of  business  in  regard  to  complaints  of  leaks  is 
admissible ;  ^^  and  also  of  the  precautions  it  takes  to  repair 
leaks.'*''  In  the  case  of  a  great  fire  —  as  the  Chicago  and  Boston 
fires  —  the  celerity  required  in  stopping  leaks  must  be  measured 
by  their  number,  the  extent  of  the  territory  over  which  they 
are  spread,  and  the  amount  of  available  force  obtainable  to 
make  the  repairs.  In  such  instances  great  energy  is  required 
of  the  company,  because  the  danger  is  great,  but  not  the  im- 
possible.®^ 

§617.     Notice  of  leaks. 

It  is  the  duty  of  a  gas  company  as  soon  as  it  receives  notice 
of  a  leak  to  take  all  necessary  steps  to  prevent  an  explosion.  It 
matters  not  through  what  sources  it  receives  information  that 
there  is  a  leak,  it  must  at  once  act.  It  cannot  be  expected  that 
a  gas  company  will  repair  a  leak  of  which  it  has  no  notice ;  but 
it  may  be  guilty  of  negligence  in  not  discovering  it,  and  if  it  is, 
it  will  be  liable  for  damages  occasioned  by  the  leak.''^     Any  one 

64  Hunt  V.  Lowell  Cxaslight  Co.,  C6  Powers  v.  Boston  Gaslight  Co., 
1  Allen  343 ;  Chisholm  v.  Atlanta  158  Mass.  257 ;  33  N.  E.  Rep.  523. 
Gaslight  Co.,  57  Ga.  28;  Pine  Bluff,  o7  Hutchinson  v.  Boston  Gaslight 
etc.,  Co.  V.  McCain,  62  Ark.  118;  Co.,  122  Mass.  219. 
34  S.  W.  Rep.  549;  Rockford  Gas-  cs  pine  Bluff,  etc..  Co.  v.  Schnei- 
light  and  Coke  Co.  v.  Ernst,  68  111.  der.  62  Ark.  109;  34  S.  W.  Rep. 
App.  300;  Consolidated  Gas  Co.  v.  547;  33  L.  R.  A.  366;  State  v.  Con- 
Crocker,  82  Md.  113;  34  Atl.  R^.  solidated  Gas  Co.,  85  Md.  637;  37 
423;  31  L.  R.  A.  785;  Hoin  v.  Lan-  Atl.  Rep.  263;  Siebrecht  v.  East 
caster,  13  Lane.  L.  Rev.  131.  River  Gas   Co.,  21  N.  Y.  App.  Div. 

<-.  Holly  V.    Boston   Gaslight  Co.,  110;   47  N.  Y.  Supp.  262. 
8  Gray  123;  69  Am.  Dec.  233. 


LEAKS  a:vd  explosions.  Til 

may  give  the  company  notice  of  the  leak,  and  it  will  he  hound 
hy  it.  In  one  case  it  was  said  that  "  any  inmate  of  plaintiff's 
family  was  competent  and  had  a  right  to  communicate  to  the 
defendants  that  the  gas  was  escaping  from  some  leak  in  their 
pipes  into  the  house,  making  its  occupancy  either  unsafe  or  dis- 
agreeable or  offensive  " ;  that  it  was  proper  for  the  plaintiff's 
wife  to  send  a  message  to  the  company  to  that  effect  by  any  per- 
son to  whom  she  thought  fit  to  intrust  it;  and  that  it  was  im- 
material how,  by  what  means,  or  through  whom  it  obtained  in- 
formation, so  that  it  was  sufficient  to  inform  them  of  the  leak.®* 
In  an  action  for  damages  occasioned  by  gas  escaping  into  plain- 
tiff's cellar  from  a  break  in  the  main  pipe  in  the  street,  it  was 
decided  by  the  court  "  that  if  the  defendant's  servants,  the  offi- 
cers of  the  company,  did  not  know,  and  by  the  use  of  due  care 
could  not  ascertain,  that  the  gas  was  escaping  into  the  plaintiff's 
house,  or  had  reasonable  cause  to  believe  that  it  was  not,  and  no 
notice  was  given  by  the  inmates  of  the  house  to  them  that  gas 
was  in  the  house,  the  defendant  is  not  liable ;  but  if  they  did 
know,  or  if,  with  their  knowledge  of  the  condition  of  the  street, 
they  had  reasonable  cause  to  suspect  that  the  gas  had  entered 
or  was  entering  the  plaintiff's  house  in  dangerous  quantities, 
and  gave  no  notice  to  the  inmates,  the  company  is  liable  in 
damages  if  the  plaintiff  used  due  care."  ^^  So  where  the  ex- 
plosion took  place  in  a  factory  supplied  neither  with  gas  nor  gas 
pipes,  the  street  line  being  within  a  few  feet  of  the  cellar  wall ; 
and  a  few  months  before  a  sewer  connection  for  the  building  had 
been  made  which  passed  under  the  street  line ;  the  claim  being 
made  that  the  gas  escaped  from  a  break  in  the  pipe,  passed 
through  the  sand  until  it  reached  the  sewer  pipe,  and  followed 
that  into  the  cellar,  and  there  collected ;  in  support  of  the  claim 
testimony  being  given  that  escaping  gas  had  been  detected  at 
that  point  for  several  weeks  prior,  and  that  soon  afterwards  an 
old  rusty  break  in  the  gas  pipe  immediately  in  front  of  the 
premises  was  discovered;  and  that  the  company  was  notified, 
more  than  two  weeks  before  the  accident,  of  the  presence  of 

fin  Hunt    V.    Lowell    Gaslight   Co.,  7o  Bartlett     v.     Boston     Gaslight 

1  Allen  343.  Co.,   122  Mass.   209. 


712  OIL    AND    GAS. 

escaping  gas  in  the  neighborhood,  but  did  nothing  in  response 
thereto;  it  was  held  that  the  case  should  go  to  the  jury,  even 
though  the  company  denied  receipt  of  the  notice,  and  gave  evi- 
dence in  rebuttal  of  the  plaintiff's  case  generall3\'^  Where 
the  gas  escaped  from  the  defective  pipes  of  a  plant  the  company 
had  piirchased,  the  court  held  that  the  company's  liability  was 
not  dependent  on  its  knowledge  of  the  pipes'  defective  condition 
or  of  the  escaping  gas,  but  on  the  observance  of  care  by  it  in 
keeping  the  pipes  in  a  reasonably  safe  condition,  and  using  them 
so  as  to  not  unnecessarily  injure  others/" 

§618.     Notice. —  Failure  to  discover  place  of  leak. 

If  a  company  has  notice  that  gas  is  escaping,  it  must  prevent 
its  escape  at  its  peril.  The  apparent  quantity  escaping  is  im- 
material ;  for  it  is  bound  to  investigate  thoroughly  the  place 
where  it  is  escaping  and  prevent^uch  escape ;  and  if  it  fall  into 
error  concerning  the  probable  danger,  believing  that  only  a  small 
quantity  is  escaping,  and  the  gas  in  fact  escapes  in  sufficient 
quantity  to  be  dangerous,  the  company  will  be  liable  for  its 
error  in  estimating  the  danger,  and  cannot  shift  the  loss  occa- 
sioned by  the  explosion  upon  the  person  injured  in  his  property 
or  person. '^^  So  if  the  company  believes  the  gas  is  escaping  at 
a  particular  place,  and  there  attempts  to  prevent  its  escape  by 
repairing  the  supposed  defect  in  its  pipe  or  apparatus,  when  in 
fact  the  leak  is  at  another  place,  it  will  be  liable  for  all  the  con- 
sequences following  from  the  gas  escaping. ''*  But  where  the 
leak  was  apparently  a  small  one,  and  the  gas  company's  work- 
men searched  for  it  with  a  light,  it  was  held  to  be  a  ques- 
tion for  the  jury  whether  the  action  of  the  workmen  was  negli- 
gent."^^ 

71  Henderson  v.  Allegheny  Heat-  40  N.  Y.  Supp.  671 ;  17  N.  Y.  Misc. 
ing  Co.,  179  Pa.  St.  513;   39  W.  N.       Rep.   625. 

C.  485;    36  Atl.  Rep.   312.  74  Consolidated  Gas  Co.  v.  Crock- 

72  Dow  V.  Winnipesaukee  Gas,  etc.,  er,  82  Md.  113;  34  Atl.  Rep.  423; 
Co.,  69  N.  H.  312;  41  Atl.  B6p.  31  L.  R.  A.  785 ;  Pine  BluflF,  etc.,  Co. 
288;  42  L.  R.  A.  569.  v.  Schneider,  62  Ark.  109;  34  S.  W. 

7".  See  Otersbach    v.   Philadelphia,       Rep.  547;    33  L.  R.  A.  366. 
161  Pac.  St.   Ill;  28  Atl.  Rep.  991.  75  Ellis    v.    London    Gaslight    Co.. 

Anderson  v.  Standard  Gaslight  Co.,       32  Gas  J.  849.     See  Richmond  Gas 


LEAKS    AND    EXPLOSIONS.  713 

^619.     Notice  of  leak,  when  not  necessary  to  fix  liability. 

It  is  the  duty  of  a  gas  company  to  employ  safe  and  sound 
mains  or  pipes  for  carrying  gas  to  its  customers.  It  must  exer- 
cise due  care  in  selecting  and  laying  them,  with  a  view  to  pre- 
vent leaks.  If  it  does  not  exercise  such  care  in  selecting  and 
laying  them,  or  if  it  knowingly  lays  defective  pipes  and  mains, 
it  cannot  insist  that  it  had  no  notice  of  the  leak  that  caused  the 
damages.  In  such  an  instance  it  is  chargeable  with  notice  of 
their  condition ;  and  if  a  leak  occur  by  reason  of  which  damage 
is  done  to  property  or  persons  it  will  be  liable,  although  it  had 
no  notice  of  the  leak.^*' 

§620.     Evidence  of  notice  to  gas  company  of  danger  to  mains. 

It  is  always  admissible  to  show  that  the  gas  company  had 
notice  of  danger  to  its  mains  and  pipes,  from  whatever  cause, 
when  the  charge  i^  that  the  pipes  were  broken  because  of  such 
threatened  danger  and  not  repaired  within  proper  time.  Illus- 
trations of  this  rule  are  excavations  in  the  public  streets  in  the 
near  proximity  to  the  mains  or  pipes  that  were  broken  by  reason 
of  such  excavations.  Thus  where  gas  escaped  from  a  broken 
pipe  in  the  street,  the  break  being  occasioned  by  reason  of  a 
subway  being  constructed  in  the  street,  a  letter  from  the  chief 
engineer  of  the  construction  company  to  the  superintendent  of 
the  gas  company  relative  to  its  pipes  and  offering  facilities  to 
it  to  examine  and  care  for  them ;  and  also  testimony  of  conver- 

Co.   V.   Baker.   146  Ind.  600;   45  N.  "It    was    not    necessary    to    aver 

E.  Rep.   1049  36  L.  R.  A.  683.     See  that    appellant   knew    the    gas    was 

Bastian  v.  Keystone  Gas  Co.,  27  N.  escaping  from  the  broken  pipes  and 

Y.   App.   Div.  584;   50  N.  Y.   Supp.  percolating  through   the  ground    to 

537.  the  place  of  the  explosion.     If  the 

70  Aurora  Gaslight  Co.  v.  Bishop,  appellant  had  knowledge  of  the  im- 

81  111.  App.  493;  Hampton'v.  Crad-  perfect    condition    of    the    pipes    as 

ley  Heath  Gas  Co..  14   Gas  J.  606;  charged,  it  was  bound  to  know  also 

Smith   V.   Boston   Gaslight  Co.,    129  that   gas    would   escape.      This   was 

Mass.  318;  Crane  v.  Columbus  Con-  one    of   the    natural    results    of   the 

struction  Co..  73  Fed.  Rep.  984;   46  appellant's  negligence  and  for  these. 

r.   S.   App.   52;    20   C.   C.    A,   233;  it  is  responsible."     Alexandria  Min- 

United  Oil  Co.  v.  Roseberry  (Colo.),  ing,  etc..  Co.  v.  Irish,  16  Ind.  App. 

69  Pac.   Rep.  588.  534;  44  N.  E.  Rep.  680. 


714  OIL    AND    GAS. 

sations  between  the  engineer  of  the  constrnction  company  and 
the  engineer  of  the  gas  company  in  which  the  latter  was  recom- 
mended to  have  an  inspector  on  the  line  of  work,  were  held  ad- 
missible on  the  ground  that  it  tended  to  show  to  the  gas  com- 
pany the  peculiar  dangers  to  which  the  pipes  were  exposed  and 
the  opportunity  afforded  it  to  guard  against  them."  Where  a 
gas  company  had  repeatedly  repaired  a  cracked  elbow  it  had 
put  in,  that  was  held  to  be  sufficient  evidence  of  notice  of  the 
defect  and  to  hold  it  liable  for  a  failure  to  remove  it  or  to  close 
the  crack.'^^  So  it  may  be  showm  that  the  company  was  directly 
notified  of  the  escaping  gas  —  such  as  a  notice  to  its  pipe  line 
walker '^'^ — that  workmen  were  seen  digging  at  the  place  for 
breaks  in  the  gas  pipes  with  tools  branded  with  the  initials  of 
the  company  —  the  same  brands  as  were  on  the  tools  of  the 
men  who  fixed  the  break  after  the  explosion  —  in  order  to  show 
knowledge  on  the  company's  part  that  the  pipe  in  that  locality 
frequently  leaked.***  Testimony  by  a  former  occupant  of  a 
building  that  gas  was  smelled  in  the  cellar  a  year  previous  to 
the  time  of  the  explosion  was  held  admissible,  where  there  was 
other  evidence  of  such  a  smell  after  such  occupant  left  the  build- 
ing, and  extending  up  to  about  the  time  of  the  explosion.^^ 

§621.     Evidence  of  other  leaks. 

Evidence  of  a  leak  from  which  gas  escaping  did  not  cause  the 
injury  is  not  admissible,  although  gas  escaping  from  a 
leak  did  cause  the  injury;  but  if  gas  from  both  of  them  com- 

■  "7  Koplan  V.  Boston  Gaslight  Co.,  was  on  the  right  side  of  the  street 

177  Mass.  15;  58  N.  E.  Rep.  183.  is  not  such  a  fatal  variance  as  will 

78  Richmond  Gas  Co.  v.  Baker,  defeat  a  plaintiff  who  alleges  that 
146  Ind.  600;  45  N.  E.  Rep.  1049;  the  horse  was  on  the  left  side;  nor 
36  L.  R.  A.  683 ;  Consumers'  Gas  is  the  verdict  erroneous  when  such 
Trust  Co.  V.  Corbaley.  14  Ind.  App.  a  variance  is  specifically  shown  by 
549;  43  N.  E.  Rep.  237.  the  finding.     Alexander  Mining,  etc., 

79  Consumers'  Gas  Trust  Co.  v.  Co.  v.  Irish,  16  Ind.  App.  534 ;  44 
Perrego,    144    Ind.    350;    43    N.    E.  N.   E.  Rep.  680. 

Rep.  306;  32  L.  R.  A.  146.  *.  si  Werner    v.     Ashland     Lighting 

80  Lewis  V.  Boston  Gaslight  Co.,  Co.,  84  Wis.  652;  54  N.  W.  Rep. 
165  Mass.  411;   43  N.   E.  Rep.   178.       996. 

Evidence   that   the   horse   injured 


LEAKS    AND    EXPLOSIONS.  715 

bined  to  any  extent,  then  evidence  of  both  leaks  are  admissible. 
But  if  the  charge  is  that  the  gas  pipes  were  old  and  decayed,  or 
had  been  injured  by  the  soil  in  which  they  were  laid,  or  by 
electrolysis,  then  evidence  of  other  leaks  near  by  or  in  the  same 
neighborhood,  where  the  conditions  are  the  same,  is  admissible 
to  show  that  the  gas  company  had  notice  that  the  pipes  had 
become  decayed  by  long  use,  or  affected  by  the  nature  of  the 
soil,  or  by  electrical  action,  at  the  place  from  which  it  is  charged 
the  gas  escaped,  and  consequently  fix  upon  it  the  charge  of 
negligence  in  not  finding  and  repairing  the  particular  defect.^" 

§622.     Evidence  of  leaks. 

In  proving  a  leak  in  a  street  main,  from  which  the  escaping 
gas  caused  an  injury  by  explosion,  the  testimony  of  persons 
residing  in  the  neighborhood,  to  the  effect  that  they  had  smelt 
gas  for  some  time  and  on  the  day  of  the  explosion,  is  admissible, 
on  the  theory  that  it  tended  to  prove  the  leak.^^  Xor  is  the 
evidence  of  witnesses,  to  the  effect  that  they  had  perceived  an 
odor  indicating  the  escape  of  gas  from  certain  street  mains,  ren- 
dered incompetent  by  subsequent  evidence  assigning  another 
cause  for  the  odor.®*  And  a  witness  may  testify  that  the  odor 
was  similar  to  the  odor  of  escaping  gas  elsewhere  several  months 
before,  the  purpose  being  not  to  prove  another  leak,  but  merely 
to  identify  the  odor.^^  Evidence  of  the  condition  of  the  ground 
through  which  the  gas  esca|Ded  into  the  house  injured  by  the  ex- 
plosion —  such  as  it  was  blackened  by  the  gas,  and  would  bum 
when  a  light  was  applied  to  it  —  as  well  as  that  gas  flowed  from 
the  defect  in  the  pipe  after  the  explosion,  is  admissible.^®  Wliere 
the  charge  was  that  the  gas  escaped  into  a  sewer  and  thence  into 

82  Emerson  v.  Lowell,  3  Allen  410.  Boston  Gaslight  Co.,  129  Mass.  318; 
This  case  is  not  exactly  in  point ;  Siebrecht  v.  East  River  Gas  Co,,  21 
but  it  is  believed  that  the  proposi-  N.  Y.  App.  110;  47  N.  Y.  Supp.  262. 
tion  laid  down  in  the  text  is  sup-  «*  Koplan  v.  Boston  Gaslight  Co., 
ported  by  it  in  principle.  supra. 

83  Koplan  V.  Boston  Gaslight  Co.,  ss  Koplan  v.  Boston  Gaslight  Co., 
177  Mass.   15;   58  N.  E.  Rep.   183;  supra. 

Consumers'  Gas  Trust  Co.  v.  Perre-  s^  Consumers'    Gas    Trust    Co.    v, 

go,  144  Ind.  350;  43  N.  E.  Rep.  Perrego,  144  Ind.  350;  43  N.  E.  Rep. 
306;    32    L.    R.    A.    146;    Smith   v.       306;   32  L,  R.  A.  146. 


716  OIL    AND    GAS. 

plaintiff's  house,  in  order  to  show  that  the  gas  company  did 
not  use  due  diligence  in  finding  and  stopping  the  leak  after 
notice,  it  was  held  proper  to  show  by  witnesses  passing  along  the 
street  to  what  extent  the  gas  escaped  in  the  street  and  also  that 
it  escaped  from  the  same  sewer  through  which  it  reached  plain- 
tiff's house  into  other  houses  at  points  beyond,  if  the  company 
had  notice  of  that  fact;  but  it  was  not  admissible  to  show  that 
wherever  the  gas  escaped  into  other  houses  sickness  followed.^'^ 
It  may  be  shown  that  the  ground  was  frozen  and  the  gas  could 
not  escape  into  the  air;  but  would  naturally  follow  along  any 
opening  under  the  frozen  surface.^* 

§623.     Breaks  occasioned  by  ordinary  use  of  streets. 

A  gas  company  is  bound  to  lay  its  pipes  in  such  a  manner 
that  the  ordinary  use  of  the  streets  for  traffic  will  not  break 
them ;  and  to  not  do  so  is  an  act  o:^negligence,^^  And  the  same 
is  true  in  regard  to  an  instance  of  repair  of  a  street.  Thus 
where,  in  repairing  a  street,  a  heavy  steam  roller  passed  over 
its  surface  several  times,  breaking  water  pipes  from  which  water 
bubbled  up  to  the  surface,  and  shortly  an  explosion  occurred, 
the  municipal  corporation,  which  owmed  the  gas  pipes,  were  held 
liable,  although  the  pipes  were  laid  under  thirteen  inches  of 
granite  and  concrete,  which  was  equivalent  to  thirty  inches  of 
earth,  a  witness  testified.  It  was  shown  that  the  roller  had 
broken  pipes  at  other  times ;  and  that  pipes  had  been  broken 
through  a  subsidence  of  the  ground,  Avhich  was  loose  and  shift- 
ing. It  was  also  shown,  however,  that  the  roller  sometimes  had 
gone  over  the  ground  without  breaking  pipes.^" 

§624.     Action  of  frost. 

It  is  the  duty  of  a  gas  company  to  lay  its  pipes  sufficiently 
deep,  so  that  they  will  be  beyond  the  action  of  frost.     This  is 

87  Emerson  v.  Lowell,  3  Allen  410.  Gaslight  Co.  v.  Bishop,  81  111.  App. 

s8  Siebrecht    v.    East    Eiver    Gas  493 ;    Hampton    v.    Cradley    Heath 

Co..  21  N.  Y.  App.  Div.  110;   47  ^.  Gas  Co.,  14  Gas  J.  606. 

Y.  Supp.  262.  soPocoek  v.  Brighton,  31  Gas  J. 

89  Brown   v.    New   York    Gaslight  429. 
Co.,   — Anthon   N.   P.   351;    Aurora 


LEAKS    AND    EXPLOSIOXS.  7l7 

true  with  respect  to  its  power  to  supply  its  cousumcrs ;  for  if  it 
were  to  lay  its  pipes  so  near  the  surface  that  frost  would  pre- 
vent the  flow  of  gas  in  extreme  weather,  it  would  not  be  perform- 
ing its  duty  towards  its  consumers.  So  if  pipes  were  thus  laid 
and  the  pipes  should  be  broken  by  reason  of  the  frost,  permitting 
gas  to  escape  to  the  injury  of  a  person,  the  company  would  be 
liable ;  although  it  should  immediately  stop  the  leak,  enough  gas 
having  escaped  to  cause  the  damage.'*^ 

§625.     Pipes  breaking  from  lack  of  support. —  Excavations  near 
pipe  line. 

If  the  gas  company  has  laid  its  pipes  or  mains  in  improper 
soil  —  in  other  words,  if  they  are  not  properly  supported  —  it 
is  chargeable  with  notice  of  the  tendency  of  such  soil  to  sink  or 
subside,  leaving  the  pipes  or  mains  without  proper  support, 
whereby  they  are  broken.  The  improper  laying  of  a  gas  pipe 
is  an  act  of  negligence  ;  and  if  for  that  reason  it  break,  gas  escape, 
and  an  explosion  inflict  an  injury,  it  will  be  liable,  the  plaintiff 
not  contributing  thereto.''"  Evidence  of  the  existence  in  the 
street  of  holes  and  depressions  is  admissible  to  show  that  the 
gas  company  knew,  or  should  have  known,  that  the  street  was 
likely  to  settle  and  cause  its  pipes  therein  to  break. ^^  If  ex- 
cavations are  made  in  the  street  near  the  company's  mains,  it 
must  examine  such  excavations,  in  order  to  see  how  they  may 
affect  its  mains,  take  all  necessary  steps  to  prevent  the  earth  so 

oiKockford     Gaslight    and    Coke  262;    Metzger    v.    Schultz.    16    Ind. 

Co.    V.     Ernst,    68     111.    App.    300;  App.   454;    43   N.    E.    Rep.    886;    45 

Sehermerhorn  v.   Metropolitan   Gas-  X.  E.  Rep.  619;  Heh  v.  Consolidated 

light  Co.,  5  Daly  144.     In  Hampton  Gas   Co.,   201    Pa.    St.  443;    50  Atl. 

V.  Cradley  Heath  Gas  Co.,  14  Gas  J.  Rep.  9i)4 ;   88   Am.  St.  Rep.  819. 

606,   it  is  said  that  a  gas  company  "3  I^wis   v.   Boston   Gaslight   Co.. 

is  not  liable  if  a  pipe  is  broken  by  165  Mass.  411;  43  X.  E.  Rep.   178; 

a   change  in  the  weather.  Koelsch  v.  Philadelphia,  152  Pa.  St. 

92  Aurora  Gaslight  Co.  v.  Bishop.  355;  25  Atl.  Rep.  522;   18  L.  R.  A. 

81   111.  App.  493;   Crane  Co.  v.  Co-  7.59;   ,34  Am.  St.  Rep.  6.53;   Heh  v. 

lumbus,  etc.,  Co.,  73  Fed.  Rep.  984;  Consolidated   Gas   Co.,   201    Pa.   St. 

46  U.  S.  App.  52;  20  C.  C.  A.  233;  443;  50  Atl.  Rep.  994;   88  Am.   St. 

Siebrecht  v.  East  River  Gas  Co.,  21  Rep.  819. 
X.  Y.  App.  Div.  110;  47  X.  Y.  Supp. 


718  OIL    AND    GAS. 

settling  as  to  not  break  them.  Thus,  where  it  appeared  that 
the  leak  was  caused  bv  a  failure  of  the  city  in  constructing  a 
sewer  to  properly  pack  the  earth,  whereby  the  gas  main  that 
broke  was  allowed  to  settle ;  it  was  held  that  the  question  whether 
or  not  the  gas  company  had  used  due  diligence  to  see  that  the 
earth  was  properly  put  back  so  as  to  support  its  pipes  was  prop- 
erly left  to  the  jury."*  In  a  like  case  where  the  gas  had  been 
leaking  for  a  day  before  the  injury,  it  was  held  proper  to  give 
the  jury  an  instruction  that  the  plaintiff  could  not  recover  if 
the  city  did  not  properly  tamp  the  earth  when  replacing  it,  if 
the  defendant  was  ignorant  of  that  fact,  and  the  surface  of  the 
earth  did  not  show  the  defective  tamping,  there  being  evidence 
that  tests  could  easily  have  been  applied  to  determine  whether 
or  not  the  dirt  was  properly  tamped."^  Where  a  gas  company 
had  no  notice  of  the  excavation,  nor  of  gas  escaping,  nor  that  its 
pipe  had  been  deprived  of  its  support;  and  the  traffic  on  the 
street  caused  it  to  break,  letting  the  gas  escape  for  two  or  three 
days  before  the  explosion,  it  was  held  that  the  character  of  the 
break,  the  length  of  time  the  gas  was  escaping,  and  the  absence 
of  any  one  on  behalf  of  the  company  at  the  time  and  the  place 
of  the  excavation,  constituted  evidence  of  negligence  on  its 
part;  and  the  appeal  was  dismissed.'**^  The  fact  that  the  ex- 
cavation is  made  by  the  city,  or  by  a  city  contractor,  in  building 
a  sewer  or  making  other  public  improvements,  does  not  relieve 
the  gas  company,  where  the  failure  to  repair  is  the  proximate 
and  not  the  remote  cause  of  the  accident."^  ^^^lere  the  charge 
was  negligence  in  not  stopping  a  leak  in  the  main,  a  notice  is- 
sued by  the  company  to  its  consumers,  calling  attention  to  the 
liability  of  leaks  occurring  from  the  digging  up  of  streets  by 
various  corporations,  copies  of  which  had  been  distributed  by 

94  Butcher  v.  Providence  Gas  Co.,  96  Price  v.  South,  etc..  Co.,  65  L. 
12  R.  I.  149;  34  Am.  Rep.  626;  J.  Q.  B.  126;  12  T.  L.  R.  31. 
Price  V.  South,  etc.,  Gas  Co.,  65  L.  07  Oil  City  Gas  Co.  v.  Robinson, 
J.  Q.  B.  126;  12  T.  L.  R.  31.  See  99  Pa.  St.  1.  In  this  case  the  gas 
Vickerman  v.  Leeds,  etc.,  Co.,  15  company  had  notice  of  the  leak  suf- 
Gas  J.  654;  Chadwick  v.  Corpora<^  ficiently  long  before  the  explosion 
tion  of  Wigan,  28  Gas  J.  562.  to  have  repaired  it. 

95  Greaney  v.  Holyoke,  174  Mass. 
437;    54   N.   E.    Rep.   880. 


LEAKS    AND    EXPLOSIONS.  719 

its  agents  within  a  year  prior  to  the  accident,  was  held  ad- 
missible in  evidence  on  the  question  of  due  care  on  the  part  of 
the  company."^ 

§626.     Property  owner's  duty  to  notify  gas  company  of  leaks. 

The  duty  of  notifying  a  gas  company  of  a  leak  on  his  premises 
is  imposed  upon  its  owner,  and  he  must  give  the  company  notice 
of  it  as  soon  as,  or  at  least  within  a  reasonable  time  after,  he 
discovers  it.  The  time  within  which  he  must  give  the  notice 
depends  upon  the  amount  of  gas  escaping  and  the  danger  that 
will  probably  be  incurred  by  delay.  If  the  leak  should  be  insig- 
nificant in  amount,  there  is  not  that  urgency  required  as  if  it 
was  in  a  large  amount.  The  leak  may  be  apparently  insignifi- 
cant in  amount,  and  yet  still  be  very  considerable.  In 
such  an  instance  the  property  owner  is  justified  in  measuring 
his  conduct  by  the  appearance  of  things ;  yet  even  here,  as  escap- 
ing gas  is  a  very  dangerous  thing,  he  is  required  to  act  with 
that  promptitude  commensurate  with  the  probable  danger.  In 
one  case,  to  recover  damages  occasioned  to  his  health  by  escaping 
gas,  the  court  ruled  that  if  the  plaintiff  discovered  the  leak 
early  enough  in  the  day  to  have  had  it  repaired  by  night,  if  he 
had  at  once  notified  the  company,  and  if,  in  consequence  of 
such  neglect  to  notify  it,  the  leak  was  not  repaired  that  night, 
and  the  plaintiff  was  injured  by  the  escaping  gas,  such  delay 
in  giving  notice  would  be  evidence  to  be  considered  by  the  jury 

98  Powers  V.  Boston  Gaslight  Co..  Upon    the    question    whether    the 

158  Mass.  257;  33  N.  E.  Rep.  523.  pipe  was  liandled  carefully  and  laid 

The   fact  that   no   nails^   wire   or  properly,    a    witness   may   not   give 

chain  was  found  after  an  explosion  his  opinion   as  to  whether  the  line 

of   a    gas   pipe,    is   not   sufficient   to  was  laid  with   proper  skill  or  care. 

show   that    the   pipe   was   not    sup-  but  he  may  give  an  opinion  to  show 

ported    at    the    time    the    premises  that    men    of    experience    and    skill 

were   leased,   where   the   undisputed  were    employed,    accompanied    by    a 

evidence   shows    that   the   pipe    was  statement    as    to    what   carelessness 

supported  by  a   chain  or  wire   sus-  or    lack   of   skill   there   was    in   the 

pended  from  a  joist  when  first  put  execution   of  the  work.     Crane   Co. 

in.     Metzger  v.  Shultz.  16  Ind.  App.  v.  Columbus,  etc.,  Co.,  73  Fed.  Rep. 

4.54;  43  X.  E.  Rep.  886;   rehearing  084;  46  U.  S.  App.  52;  20  C.  C.  A. 

denied,  45  N.  E.  Rep.  619.  233. 


720  OIL    AND    GAS. 

of  want  of  such  ordinary  care  as  would  defeat  the  action,  al- 
though the  defendant  may  have  been  negligent.^'*  In  the  case 
of  escaping  gas  it  is  undoubtedly  the  duty  of  the  owner  of  the 
premises  to  turn  off  the  gas,  if  he  can  reasonably  do  so,  until 
the  servants  of  the  company  arrive  and  take  charge  of  the  gas 
apparatus. ^'^*'  Where  foul  ammoniacal  water  and  odors  had 
leaked  into  the  plaintiff's  cellar  from  a  leak  in  a  pipe,  for  nine 
months,  to  his  damage ;  and  he  then  gave  notice  to  the  gas  com- 
pany of  the  leak,  and  they  repaired  the  leak  within  five  days, 
it  was  held  that  he  was  entitled  to  recover  the  damages  he  had 
suffered  within  such  five  days,  because  of  his  failure  to  give 
notice  when  the  leak  began  and  during  the  period  of  nine 
months."^  So  where  the  leak  was  discovered  at  night ;  and 
plaintiff  did  nothing  until  the  next  morning,  although  all  con- 
sumers were  requested  on  the  back  of  their  bills  to  notify  the 
gas  manager  at  once  in  case  a  leak  was  discovered ;  and  in  the 
morning  the  plaintiff  employed  a  plumber  to  search  for  the  leak, 
who  did  so  with  a  lighted  candle,  when  an  explosion  followed,  it 
was  held  that  there  was  such  contributory  negligence  as  to  pre- 
vent a  recovery.^""  Plaintiff's  house  was  ninety  feet  from  the 
leak  in  the  main  of  the  defendant  company.  The  gas  passed 
under  the  frozen  surface  of  the  earth  to  her  cellar.  She  was 
not  a  customer  for  the  gas  of  the  defendant,  but  was  of  another 
company.  Owing  to  a  disease,  she  was  not  able  to  detect  the 
escaping  gas  by  the  odor.  She  opened  the  cellar  door,  and  after 
a  few  minutes  the  gas  flowed  into  a  room  where  she  had  a 
lighted  lamp,  and  an  explosion  was  occasioned  by  the  gas  coming 
in  contact  with  the  flame  of  the  lamp.  It  was  held  that  her 
failure  to  notify  the  defendant  of  the  leak,  even  though  she 
knew  of  its  existence,  did  not  constitute  contributory  negli- 
gence.     In  such  an  instance  it  was  only  reasonable  in  her  to 

99  Holly   V.    Boston   Gaslight   Co.,  3  C.  B.  1 ;    15  L.  J.  C.   P.  301 ;    10 

8  Gray  123 ;  69  Am.  Dec.  233 ;  Hunt  Jur.   883. 

V.  Lowell  Gaslight  Co..  1  Allen  343;  loi  Hills  v.  Gaslight  Co.,   13   Gas 

Hills    V.    Gaslight    Co..    13    Gas    J.^  J.   877. 

877.    See  Parkin  v.  Wirksworth  Gas  102  Parkin  v.  Wirksworth  Gas  Co., 

Co.,  26  Gas  J.  946.  26  Gas  J.  946.     See  Bartlett  v.  Bos- 

looHolden  v.  Liverpool,  etc..  Co.,  ton  Gaslight  Co.,  122  Mass.  209. 


LEAKS    AND    EXPLOSIONS.  721 

suppose  that  the  gas  escaped  from  the  pipes  of  the  company 
supplying  her  with  gas/""* 

§627.     Company  misleading  plaintiff  as  to  extent  of  danger. 

If  the  gas  company  mislead  the  plaintiff  concerning  the  ex- 
tent of  the  danger  he  is  incurring,  or  lulls  his  suspicions, 
whereby  he  is  misled  to  his  injury,  it  will  be  liable.  In  cases 
of  doubt  as  to  the  danger,  a  person  has  a  right  to  rely  upon  the 
representations  of  the  servants  or  agents  of  the  company;  and 
even  in  cases  where  the  danger  appears  to  be  a  probable  one, 
under  the  assurance  of  the  servant  or  agent  of  the  company,  who 
the  plaintiff  knows  ought  to  know  whether  or  not  there  is  danger, 
that  there  is  none,  the  plaintiff  may  rely  thereon,  and  recover 
if  he  is  injured ;  unless  he  be  as  experienced  in  such  matters  as 
such  servant  or  agent.  And  if  the  plaintiff  is  as  experienced 
as  the  servant  or  agent  of  the  company,  yet  if  his  knowledge  is 
not  such  as  to  certainly  show  there  is  a  danger ;  and  such  servant 
or  agent,  who  the  plaintiff  believes,  or  has  a  right  to  believe, 
has  a  more  accurate  knowledge  of  the  situation  than  he,  by 
words  or  actions  lulls  his  suspicions,  and  for  that  reason  he  does 
not  take  the  precautions  he  otherwise  would,  and  is  injured,  he 
can  recover.  Thus  Avhere  a  consumer  smelt  escaping  gas,  but 
was  assured  by  the  company's  employee  there  was  no  leak,  it 
was  held  that  he  was  not  guilty  of  such  contributory  negligence 
as  would  prevent  a  recovery  for  a  loss  occasioned  by  the  leaking 
gas  exploding.^"* 

§628.     Municipality  operating  plant. 

If  a  municipality  supplies  gas  to  private  consumers,  it  will 
be  liable  for  the  negligence  of  its  servants,  or  for  its  negligent 

103  Consumers'  Gas  Trust  Co.  v.  etc.  Co.,  98  N.  Y.  115;  Pullman  Pal- 
Perrego,  144  Ind.  350;  4.3  N.  E.  Rep.  ace  Car  Co.  v.  Laack,  143  111.  242; 
306;  32  L.  R.  A.  140.  32  N.   E.  Rep.  285;    18L.  R.  A.  215: 

104  Anderson  v.  Standard  Gaslight  affirming  41  111.  App.  34;  Washing- 
Co.,  17  N.  Y.  Misc.  625;  40  N.  Y.  ton  Gaslight  Co.  v.  Eckloff.  7  App. 
Supp.  071;  Richmond  Gas  Co.  v.  D.  C.  372;  Wagner  v.  H.  W.  Jayne 
Baker,  146  Ind.  600;  45  N.  E.  Rep.  Chemical  Co..  147  Pa.  St.  475;  29 
1049;  36  L.  R.  A.  683;  Lee  v.  Troy,  W.  N.  C.  490;  23  Atl.  Rep.  772, 


722  OIL    AND    GAS. 

acts,  the  same  as  an  individual  or  private  or  semi-private  cor- 
porations engaging  in  the  same  business  and  being  guiltj  of  the 
same  negligence  are  liable/"^  It  is  held  to  the  same  degree  of 
diligence  and  care/*'®  The  operation  and  maintenance  of  a 
gas  or  lighting  plant  by  a  city  is  a  private  corporate  function 
as  distinguished  from  purely  governmental  function,  rendering 
the  city  liable  the  same  as  an  individual. ^°^ 

§629.     Gas    following    supply    pipe    from    main. —  Percolating 
through  soil. —  Sewer. 

Gas  companies  are  chargeable  with  notice  of  the  fact  that  the 
tendency  of  gas  escaping  from  their  mains  in  the  street  is  to 
follow  the  supply  pipe  into  the  house  supplied,  especially  where 
the  soil  is  not  packed  closely  around  such  supply  pipe ;  that  it 
has  the  same  tendency  to  follow  their  mains ;  that  when  it  enters 
a  sewer  it  will  follow  that  into  the  'fiouses  and  that  it  will  even 
j>ercolate  the  soil,  thereby  reaching  cellars  and  rising  to  other 
parts  of  the  building.  Gas  may  follow  pipes  for  long  distances, 
and  through  these  avenues  find  its  way  into  buildings,  there  ex- 
ploding without  any  seeming  connection  between  the  place  of 
its  escape  and  the  place  of  explosion.  In  all  such  instances  the 
original  negligence  is  either  failure  to  detect  the  leak  or  else 
the  use  of  such  pipes  as  in  which  in  all  reasonable  likelihood 
leaks  will  occur.  The  apparent  nature  of  the  soil  may  l>e  such, 
or  the  distance  between  the  place  of  the  leak  and  that  of  the  ex- 
plosion so  great  that  no  reasonable  apprehension  exists  of  gas 

ifjs  Strawbridcje     v.     Philadelphia,  Brighton,    31    Gas   J.   429;    Scott   v. 

13  Phila.  173;  36  Leg.  Int.  27G;   13  Mayor,  etc.,  of  Manchester,  37  Eng. 

Rep.  216;    Strawbridge  v.  Philadel-  L.  (tEq.  495;    2   H.  and  N.  204;   26 

phia,  2  Penny  419;  Littman  v.  New  L.  J.  Exch.  132,  406;  3  Jur.  (N.  S.) 

YorK  City,  36  N.  Y.  App.  Div.  189;  590;    5    W.    R.    598;     Chadwick    v. 

55   N.   Y.   Supp.    383;    affirmed    159  Corporation    of    Wigan,    28    Gas    J. 

N.    Y.    559;    54    N.    E.    Rep.    1093;  562;    Boothman    v.    Mayor,    etc.,    of 

Shuter    v.     Philadelphia,     3     Phila.  Burnley,   20  Gas  J.   585. 
228;  15  Leg.  Int.  333;  Esberg- Trust  loc  Hoin    v.    Lancaster,    13    Lane. 

Cigar  Co.  v.  Portland,  34  Ore.  282^*  L.   Rev.    131. 

55   Pac.  Rep.  961    (water);   Otters-  io7  Bullniaster   v.    St.    Joseph,    70 

bach    V.    Philadelphia,    161    Pa.    St.  Mo.  App.  60. 
Ill;    28    Atl.    Rep.    991;    Pocock   v. 


LEAKS    AND    EXPLOSIOIS^S.  723 

traveling  through  such  a  soil  or  for  such  a  distance ;  yet,  never- 
theless, either  one  of  these  facts  will  not  defeat  the  action,  the 
fact  remaining  that  the  gas  was  negligently  permitted  to  escape, 
and  that  it  actually  did  travel  through  the  soil  or  the  distance 
intervening  between  the  place  of  the  leak  and  the  place  of  the 
explosion,  tlie  character  of  the  soil  and  the  length  of  the  distance 
only  adding  to  the  improbability  of  the  gas  passing  through  it 
or  traveling  so  fai'/"*  If  it  be  alleged  in  the  complaint  that 
the  gas  in  sufticieut  quantities  passed  from  the  mains  through 
the  soil  to  the  house  to  cause  an  explosion,  the  court  cannot 
take  notice  that  the  complaint  charges  an  impossibility;  but 
the  mere  allegation  of  that  fact  in  the  manner  indicated  is  not 
sufficient  to  withstand  a  motion  to  make  the  complaint  suffi- 
ciently definite  as  to  show  how  the  gas  was  conducted  from  the 
leak  in  the  main  to  the  house.^*"* 

§630.     Withdrawing  gas  from  mains  without  notice. 

A  gas  company  may  be  liable  for  negligence  in  withdrawing 
its  gas  without  notice  and  for  failure  to  give  notice  of  its  re- 
turn. In  this  instance  both  acts  must  have  been  negligent. 
Thus  where  a  consumer  lighted  the  gas  in  a  grate,  lay  down  and 
went  to  sleep ;  after  which  the  gas  company  withdrew  the  supply 

108  Fare  v.  Bath  Gaslight  Co..  25  rego,  144  Ind.  350 ;  43  N.  E.  Rep. 
Gas  J.  566;  Vickerman  v.  Leeds  306;  32  L.  R.  A.  146  (ground  frozen 
New  Gas  Co.,  15  Gas  J.  654;  Brown  on  surface)  ;  Consolidated  Gas  Co. 
V.  Illius,  27  Conn.  84;  Hunt  v.  Lo-  v.  Crocker.  82  Md.  113;  33  Atl. 
well  Gaslight  Co.,  1  Allen  343 ;  Hoi-  Rep.  423 ;  31  L.  R.  A.  785 ;  Alexan- 
ley  V.  Boston  Gaslight  Co..  8  Gray  dria  Mining,  etc..  Co.  v.  Irish;  16 
123;  69  Am.  Dec.  233;  Smith  v.  Ind.  App.  534;  44  N.  E.  Rep.  680; 
Boston  Gaslight  Co..  129  Mass.  318;  Consumers'  Trust  Co.  v.  Corbaley, 
Medex  v.  Gaslight  and  Coke  Co..  15  14  Ind.  App.  549;  43  N.  E.  Rep. 
Gas  J.  75;  Littman  v.  New  York,  237;  Siebrecht  v.  East  River  Gas 
159  N.  Y.  559;  54  N.  E.  Rep.  1093;  Co.,  21  N.  Y.  App.  Div.  110;  47 
affirming  36  N.  Y.  App.  Div.  189;  N.  Y.  Supp.  262  (a  frozen  surface)  ; 
55  N.  Y.  Supp.  383.  Heh   v.   Consolidated   Gas    Co.,   201 

109  Mississinewa  Mining  Co.  v.  Pa.  St.  443;  50  Atl.  Rep.  994;  88 
Patton,  129  Ind.  472;  28  N.  E.  Rep.  Am.  St.  Rep.  819;  People's  Gaslight 
1113;  28  Am.  St.  Rep.  203.  See  Co.  v.  Amphlett,  93  111  App.  194; 
cases  of  percolating  through  soil.  Henderson  v.  Heating  Co.,  179  Pa. 
Consumers'   Gas  Trust   Co.  v.   Per-  St.  513;  36  Atl.  Rep.  312. 


724  OIL    AND    GAS. 

without  notice  and  then  turned  it  on  without  giving  notice  it 
had  done  so,  and  the  gas  escaped  into  the  room  and  injured  the 
person  so  asleep,  he  having  remained  continuously  asleep  from 
the  time  he  lay  down  until  awakened  by  the  escaping  gas,  it  was 
held  that  the  company  was  liable.""  To  withdraw  gas  from 
the  pipes  of  a  house,  without  notice  to  the  tenant  or  persons 
therein,  when  it  is  lighted ;  and  to  return  it  without  notice,  is  a 
gross  act  of  negligence  on  the  part  of  the  gas  company,  and  a 
very  dangerous  thing  to  do.^^^ 

§631.     Undue  pressure  in  mains. 

In  some  States  the  pressure  in  natural  gas  mains  is  regulated 
by  statutes ;  but  we  are  not  aware  that  such  a  statute  has  been 
made  applicable  to  artificial  gas  maina^  Thus  where  a  statute 
required  a  company  to  use  sound  wrought  or  cast  iron  pipes,  to 
test  them  to  a  pressure  of  four  hundred  pounds  to  the  square 
inch,  and  to  not  exceed  a  pressure  of  three  hundred  pounds  in 
their  use,  it  was  held  to  be  an  act  of  negligence  to  not  test  the 

110  Beyer  v.  Consolidated  Gas  Co.,  acting  under  this  impression,  no 
44  JSi.  Y.  App.  Div.  158;  60  N.  Y.  odor  of  gas  being  perceptible  to  her, 
Supp.  628 ;  Skogland  v.  St.  Paul  and  not  examining  the  keys  to  see  if 
Gaslight  Co.  (Minn.)  ;  93  N.  W.  it  had  been  turned  off,  she  threw  a 
Rep.  668.  lighted  match  into  the  furnace  pre- 

111  See  McKenna  v.  Bridge  Water  paratory  to  turning  on  the  gas.  but 
Gas  Co.,  193  Pa.  St.  633;  45  Atl.  tne  furnace  being  full  of  gas  from 
Rep.  52;  47  L.  R.  A.  790.  the    fact    that    it    had    again    been 

Increasing  pressure  without  no-  turned  on  (without  notice),  an  ex- 
tice.    Indiana,  etc.,  Co.  v.  Long,  27    •   plosion  immediately  followed,  to  her 

Ind.  App.  219;  59  N.  Jii.  Rep.  410.  injury,    it    was    considered   by   emi- 

Where  natural  gas  was  with-  nent  counsel  to  whom  the  question 
drawn  from  the  pipes  without  no-  of  the  company's  liability  was  sub- 
tico.  until  the  fires  went  out;  and,  mitted,  that  she  could  not  recover, 
t'lc  house  having  become  cold,  the  because  of  her  negligence  in  not  as- 
/■"'i-trosR  went  into  tne  cellar  to  turn  certaining  before  throwing  the  light- 
up  the  gas  in  the  furnace,  or  to  see  ed  match  into  the  furnace  whether 
what  was  the  matter,  and  finding  the  gas  had  been  returned  into  the 
no  fire  in  the  furnace,  and  supposing  pipes,  or  whether  or  not  the  keys 
that  the  servant  or  some  of  her  were  turned  so  as  to  shut  it  off. 
children  had  turned  off  the  gas,  and 


LEAKS    AND    EXPLOSIONS.  Y25 

pipes  or  to  use  a  forbidden  pressure.""  So  it  is  an  act.  of  negli- 
gence to  unduly  increase  the  pressure  of  natural  gas  whereby  the 
stoves  and  furnaces  in  which  it  is  used  become  overheated  and 
set  fire  to  the  buildings  in  which  they  are  situated ;  and  this  is 
especially  true  if  the  pressure  increases  late  at  night  when  no 
one  is  around  to  watch  the  fires.  And  it  makes  no  difPerenco 
that  such  increased  pressure  arises  from  the  fact  that  many 
consumers  have  turned  off  the  gas,  thereby  increasing  the  sup- 
ply for  fires  kept  burning,  or  that  the  pressure  at  the  gas  wells 
increased ;  for  the  company  is  bound  to  anticipate  such  increase 
of  pressure  and  turn  its  valves  so  as  to  prevent  it.^^^ 

§632.     Evidence  of  undue  pressure  at  other  places. 

The  general  rule  is  where  it  is  charged  that  the  company  neg- 
ligently so  increased  or  permitted  such  an  increase  of  the  flow 
of  gas  as  to  overheat  plaintiff's  stoves  or  furnaces  Avhereby  his 
house  was  set  on  fire,  that  evidence  cannot  be  given  of  the  effect 
of  such  increase  at  other  points  where  the  company  is  furnishing 
gas ;  and  in  one  case  it  was  admitted  by  counsel  that  it  must 
further  be  "  shown  that  such  overheated  stoves  were  on  the  same 
low  pressure  pipe  lines,  received  their  fuel  from  the  same  supply 
under  similar  conditions,  and  through  similar  service  pipes ;  that 
the  mixers  and  burners  were  substantially  the  same ;  that  the 
keys   regulating  the   fires  were  turned  down   as  in  the  stove 

112  Alexandria,  etc.,  Co.  v.  Irish,  Huntington,  etc..  Co.,  23  Ind.  App. 
16  Ind.  App.  534;  44  N.  E.  Rep.  281;  55  N.  E.  Rep.  249;  Barrick- 
680;  Barrickman  v.  Marion  Oil  man  v.  Marion  Oil  Co.,  45  W.  Va. 
Co.,  45  W.  Va.  634 ;  32  S.  E.  Rep.  634 ;  32  S.  E.  Rep.  327 ;  44  L.  R.  A. 
327;  44  L.  R.  A.  92;  Consumers'  92;  Berns  v.  Gaston  Coal  Co.,  27 
Gas  Trust  Co.  v.  Perrego,   144  Ind.  Vv .  Va.  285. 

350;  43  N.  E.  Rep.  306;  32  L.  R.  A.  It  is  negligence  for  a  natural  gas 

146;   Indiana,  etc.,  Co.  v.  Long,  27  company  to  permit  its  regulators  or 

Ind:  App.  219;    59  N.  E.  Rep.  410.  other   appliances    to   remain   for   an 

113  Alexandria,  etc.,  Co.  v.  Pain-  unreasonable  time  in  a  condition 
ter,  1  Ind.  App.  587;  28  N.  E.  Rep.  that  they  will  not  control  the 
113;  Alexandria,  etc.,  Co.  v.  Irish,  amount  and  pressure  of  gas  fur- 
supra.-  Indiana,  etc.,  Co.  v.  New  nished.  Barrickman  v.  Marion  Oil 
Hampshire,   etc.,   Co.,  23   Ind.  App.  Co.,  supra. 

298;    53   N.   E.   Rep.   485;    Ibach    v. 


726  OIL    AND    GAS. 

wliicli  burned  appellee's  house,  and  that  there  was  no  interven- 
ing regulator  or  hindrance  to  obstruct  the  free  and  uniform  flow 
of  gas  in  such  lines."  In  this  case  the  court  added :  "  In 
other  words,  to  make  such  evidence  competent,  it  was  first  neces- 
sary to  show  that  the  general  condition  of  the  other  stoves  Avas 
in  all  essential  respects  similar  to  the  one  that  caused  the  injury. 
Such  evidence,  when  the  conditions  are  thus  shown,  is  ad- 
missible "  ;  ^^*  and  the  court  proceeded  to  make  a  quotation  from 
a  West  Virginia  case,^^^  in  which  it  was  said :  "  The  condition 
and  pressure  of  gas  in  the  neighboring  houses  at  the  time  of  the 
fire,  there  being  no  intervening  regulator  or  hindrance  to  the 
force  of  the  gas  between  the  burned  house  and  the  other  houses 
mentioned,  would  clearly  indicate  what  it  was  at  the  house  of 
the  plaintiff,  and  I  see  no  valid  objection  to  the  answering  of 
the  questions."  In  the  Indiana  case  in  which  the  admission 
was  made,  as  above  stated,  the  court,  ^fter  giving  a  summary 
of  the  evidence,  said :  "  We  think  that  all  the  witnesses  who 
testified  as  to  the  condition  of  other  stoves,  etc.,  on  that  night, 
brought  themselves  within  the  rule  laid  down  in  the  cases  cited. 
That  is,  we  do  not  think  that  before  it  can  be  shown  that  other 
stoves  were  overheated  than  the  one  causing  the  injury,  where 
the  supply  of  gas  is  received  from  the  same  general  source, 
that  such  other  stoves  were  supplied  by  the  same  sized  service 
pipes,  the  same  kind  of  valves,  and  the  same  kind  of  mixers ; 
that  they  were  the  same  general  distance  from  the  mains,  and 
that  the  keys  were  turned  down  in  just  the  same  way.  Such 
a  rule  would  be  unreasonable,  and  the  law  does  not  require 
unreasonable  things  to  be  done.  The  rule  only  goes  to  the  ex- 
tent as  to  require  similar  conditions  to  be  shown."®     It  would 

11*  Indiana,  etc.,  Co.  v.  Long,  27  etc.,   Co.,   23   Ind.  App.   298;   53   N. 

Tnd.  App.  219;  59  N.  E.  Rep.  410.  E.  Rep.  485. 

115  Barric-kman  v.  Marion  Oil  Co.,  ne  The  court  then  cites  Washing- 

45  W.  Va.  634;   32  S.  E.  Rep.  327;  ton  Tp.,  etc.,  Co.  v.  McCormick.   19 

44  L.  R.  A.  92.  Ind.  App.  G63;  49  N.  E.  Rep.  1085; 

In     making    this    admission    the   *  and   Indiana,   etc..   Gas  Co.   v.   New 

counsel      admitting       it      evidently  Hampshire,    etc.,     Co.,    supra,    and 

had   in   mind   the    ease   of   Indiana,  says   that  they   "should   be   so   con- 

etc,    Gas    Co.    v.    New    Hampshire,  strued." 


LEAKS    AIS^D    EXPLOSIONS.  727 

be  folly  to  say  that  two  persons  living  in  different  houses  could 
testify  or  show  to  any  degree  of  exactness,  that  they  turned 
their  keys  just  alike.  But  here  it  is  shown  that  the  service 
pijjes  were  of  different  sizes,  leading  to  different  stoves,  and 
yet  the  gas  was  forced  through  these  different  sized  pipes  where 
the  keys  were  turned  low  to  such  a  degree  of  pressure  as  to 
overheat  the  different  stoves.  The  witnesses  all  received  their 
gas  from  low  pressure  mains.  It  is  not  shown  that  the  mixers 
were  all  alike,  but  it  is  shown  that  appellant  furnished  them, 
and  we  think  all  these  facts  make  the  evidence  competent.  Two 
witnesses  were  permitted  to  testify  as  to  the  high  pressure  of 
the  gas  used  by  them  for  illuminating  pur|X)ses  on  the  night 
appellee's  property  was  destroyed.  The  gas  so  used  by  them 
was  supplied  from  low  pressure  mains  of  appellant.  It  is  shown 
that  the  gas  used  for  illuminating  purposes  is  supplied  through 
different  burners  than  those  used  for  heating  purposes ;  that  the 
pipes  are  smaller  as  a  rule  and  that  where  used  for  illuminating 
no  mixers  are  used.  It  thus  appears  that  in  such  case  condi- 
tions are  dissimilar  from  those  where  gas  is  used  for  heating, 
although  the  supply  is  from  the  same  general  source.  Under 
these  circumstances  we  are  inclined  to  the  opinion  that  the  evi- 
dence was  not  admissible  under  the  sale  herein  declared."  ^^^ 

§633.     Explosion  caused  by  act  of  servant  of  gas  company. 

If  the  explosion  is  brought  about  by  the  act  of  a  servant  of 
the  gas  company,  the  question  of  negligence  is  still  one  for  in- 

117  Indiana,  etc.,  Gas  Co.  v.  Long,  admit  in  evidence  the  testimony  of 

27    Ind.   App.    219;    59    N.   E.   Rep.  witnesses  who  received  gas  from  the 

410.      The    court,    however,    consid-  same  main  as  defendant,  to  the  ef- 

ered    that    the    testimony    of    these  feet   that    they   had    an    insufficient 

two  witnesses  was  harmless  in  view  supply   of   gas   during   the   time   in 

of  the  overwhelming  evidence  of  the  question,  without  showing  that  these 

negligence  of  the  defendant.  connections  were  of  the  same  or  a 

\Yhere  the  suit  was  to  recover  the  similar  character  as  that  of  the 
amount  of  a  promissory  note  given  defendant,  where  it  was  the  defend- 
in  payment  for  gas  to  be  supplied  ant's  duty  under  the  contract  to  con- 
the  maker,  and  in  a  coimter  claim  duct  the  gas  from  the  main  to  his 
the  defendant  asked  damages  for  residence.  Washington  Tp..  etc., 
failure  to  comply  with  the  contract  Co.  v.  McCormick.  19  Ind.  App. 
to   furnish  gas,  it  was  held  error  to  663;   49  N.  E.  Rep.  1085. 


728  OIL    AND    GAS. 

vestigation ;  for  the  explosion  may  have  been  occasioned  with- 
out any  negligence  on  the  part  of  the  servant,  in  which  event  the 
company  would  not  be  liable.  Whether  or  not  the  servant  neg- 
ligently occasioned  the  explosion  is  a  question  for  the  jury."** 

§634.     Company    undertaking    to    repair    consumer's    pipes    or 
fixtures. 

It  has  already  been  stated  that  if  a  gas  company  imdertake  to 
inspect  a  consumer's  pipes  in  his  house  it  is  chargeable  with  the 
same  degree  of  care  as  it  is  in  the  inspection  of  its  own  pipes. 
And  this  is  true  where  it  undertakes  to  repair  such  pipes  or  the 
consumer's  fixtures.  Thus,  where  a  notice  to  consumers  was 
printed  on  the  back  of  its  bills  that  as  soon  as  a  leak  in  the  house 
was  discovered  the  company  should  be  notified ;  and  a  consumer 
notified  the  company  of  such  a  leak,  whereupon  a  messenger  sent 
to  the  house,  who  said  he  had  come  to  Repair  the  leak,  which 
he  said  was  in  a  chandelier  in  the  front  room ;  and  after  ex- 
amining it,  stayed  about  twenty  minutes,  and  left,  saying  it 
was  all  right;  and  that  night  the  plaintiff  was  injured  by  the 
escaping  gas,  the  leak  being  in  the  pipe  inside  the  casing  of 
the  chandelier  —  it  was  held  that  the  company  was  liable. 
"  Entering  upon  the  work,"  said  the  court,  "  the  defendant 
was  bound  to  do  it  with  reasonable  care."  ^^^  The  same  rule  of 
reasonable  care  was  applied  where  the  gas  company  insisted 
upon  making  all  gas  connections  between  the  house  mains  and 
its  pipes.^"'' 

lis  Hann  v.   Weymouth,  etc.,  Co.,  us  Ferguson    v.    Boston    Gaslight 

18    Gas   J.   186;    Lannen  v.   Albany  Co.,   170  Mass.   182;   49  N.   E.  Rep. 

Gaslight   Co.,   46   Barb.   264;   44   N.  115;  Anderson  v.  Standard  Gaslight 

Y.  459;  Ward  v.  Gaslight  and  Coke  Co.,  40  N.  Y.  Supp.  671;   17  N.  Y. 

Co..   14   Gas  J.   915;    15   Gas  J.  45,  Misc.  Rep.   625;   United   Oil   Co.   v. 

75;    16  Gas  J.  10,  38,  74,  108;  Ger-  Roseberry     (Colo.),    69    Pac.    Rep. 

man  Ins.   Co.  v.   Standard   Gaslight  588. 

Co.,  70  N.  Y.  Supp.  .384;   34  N.  Y.  120  Bastian  v.   Keystone   Gas   Co., 

Misc.  Rep.  594;  Ferguson  v.  Boston  27.  N.  Y.  App.  Div.  584;   50  N.  Y. 

Gaslight    Co.,    170    Mass.    182;    49  f^ipp.  537.     See  also  United  Oil  Co. 

N.   E.  Rep.   115;   United  Oil   Co.  v.  v.  Roseberry    (Colo.).   69  Pac.  Rep. 

Roseberry     (Colo.),    69    Pac.    Rep.  588:    and   Smith  v.   Pawtucket   Gas 

588.  Co.   (R.  I.),  52  Atl.  Rep.  1078. 


LEAKS    AND    EXPLOSIONS.  729 

§635.     Injury  to  shade  trees. —  Shrubbery. 

If  a  gas  company  permit  gas  to  escape  from  its  pipes  or  mains 
whereby  shade  trees  or  foliage  in  the  street  or  upon  adjoining 
grounds  are  injured  or  killed  by  such  escaping  gas  it  will  be 
liable  for  the  damages  occasioned.  The  owner  of  property  may 
recover  for  trees,  destroyed  by  the  negligent  escape  of  gas, 
planted  by  him  in  the  street  immediately  in  front  of  his  prem- 
ises. ^'^  An  instruction  that  the  gas  company  is  not  liable, 
unless  it  could  reasonably  have  apprehended  that  escaping  gas 
would  cause  the  death  of  vegetation  is  erroneous ;  for  the  com- 
pany is  bound  to  know  the  effect  of  gas  upon  trees  and  vegeta- 
tion.^" Where  evidence  showed  that  the  death  of  the  trees 
■was  coincident  with  the  leakage  from  the  mains  nearby  of  a 
large  amount  of  gas ;  and  that  after  the  mains  were  recalked 
there  was  a  renewed  grow^th  of  vegetation,  the  verdict  of  the 
jury  was  not  disturbed  on  appeal,  although  there  was  other  evi- 
dence to  show  that  the  injury  to  the  trees  was  not  caused  in 
the  manner  alleged. ^"^  It  may  be  shown  that  other  trees  in 
the  same  vicinity  were  killed  by  gas  le  king  from  the  same 
place,  where  the  charge  is  that  the  gas  permeating  the  soil 
poisoned  and  killed  the  roots  of  the  trees.  ^"'^  So  where  the 
charge  is  that  the  gas  escaped  into  a  sewer  and  thence  into 
plaintiff's  greenhouse,  whereby  his  plants  were  killed,  evidence 
is  admissible  to  show  the  presence  of  gas  in  other  greenhouses 
situated  on  the  same  sewer. ^'^ 

i2iRockford  Gaslight  Co.  v.  Ernst,  IGO.   See  Rauck  v.  Cedar  Rapids  Gas 

68  111.  App.  300;  Armbruster  v.  Au-  Co.,   116   Iowa   — ;    89   N.    W.   Rep. 

burn   Gaslight   Co.,    18   N.   Y.   App.  88. 

447;  46  I\.  Y.  Supp.  158;  Rauck  v.  124  Rockford    Gaslight    and    Coke 

Cedar  Rapids  Gas  Co.,  116  Iowa  — ;  Co.  x.  Ernst.  68  111.  App.  ,300. 

89  N.  W.   Rep.  88.  125  Butcher  v.  Providence  Gas  Co., 

122  Wichita  Gas,  etc.,  Co.  v.  12  R.  I.  149;  .34  Am.  Rep.  626; 
Wright,  9  Kan.  App.  730;  59  Pac.  Armbruster  v.  Auburn  Gaslight  Co., 
Rep.   1085.  18  N.  Y.  App.  Div.  447;   46  N.  Y. 

123  Evans  v.  Keystone  Gas  Co.,  Supp.  158 ;  Sierbrecht  v.  East  River 
148  N.  Y.  112;  42  N.  E.  Rep.  513;  Gas  Co..  21  N.  Y.  App.  Div.  110; 
30  L.  R.  A.  651;  51  Am.  St.  Rep.  47  N.  Y.  Supp.  262;  Dow  v.  Winni- 
681:  affirming  72  Hun.  503;  25  pesaukee  Gas  Co..  69  N.  H.  312 ;  41 
N.  Y.  Supp.  191;  28  Chic.  L.  News  Atl.    Rep.    288;    42    L.    R.    A.    569. 


730  OIL    AND    GAS. 

§636.     Illuminating  gas  driving  sewer  gas  into  house. 

If  illuminating  or  natural  gas  is  negligently  permitted  to 
esca}>e  into  a  sewer  in  such  a  quantity  as  to  shove  or  drive 
sewer  gas  in  the  sewer  into  a  house,  and  such  sewer  gas  in- 
jure the  inmates  thereof,  the  gas  company  will  be  liable, 
although  no  illuminating  or  natural  gas  has  ever  entered  such 
house ;  and  the  same  would  be  true,  of  course,  if  such  illuminat- 
ing or  natural  gas  did  enter  the  house,  but  carried  with  it  other 
gas  that  produced  the  damage.^"** 

§637.     Explosion  caused  by  act  of  third  person. 

The  circumstances  may  be  such  that  the  company  will  be 
liable  although  the  explosion  is  occasioned  by  the  negligent  act 
of  a  third  person.^'^  Thus  where  the  savants  of  a  city  injured 
oil  pijDes  and  the  leaking  oil  found  its  way  to  a  sewer,  and 
thence  to  a  canal  which  flowed  under  a  mill  and  was  there  ex- 
ploded, to  plaintiff's  injury,  the  oil  company  was  held  liable.^"^ 
So  where  gas  escaped  from  a  pipe  which  the  company  was  bound 
to  keep  in  repair,  and  a  servant  of  a  third  person  negligently 
set  the  gas,  which  had  accumulated  in  his  master's  building,  on 
fire ;  and  the  fire  spread  to  the  plaintiff's  building,  the  company 
was  held  liable.^""  So  where  the  plaintiff  employed  a  gasfitter 
to  place  pipes  in  position  in  his  house  and  connect  them  with 
the  meter,  whose  servant  went  in  search  of  escaping  gas  with 
a  lighted  candle,  using  the  candle  negligently,  it  was  held  that 
he  could  recover ;  and  that  it  could  not  be  said  he  had  contrib- 


See  Denniston  v.   Philadelphia  Co.,  i26  Hunt  v.   Lowell   Gaslight   Co., 

1   Super.    (Pa.)    Ct.  599;   38  W.  N.  8  Allen  169;  85  Am.  Dec.  697. 

C.  332;  27  Pittsb.  L.  J.  N.  S.   14.  isiAurora  Gaslight  Co.  v.  Bishop, 

If  other   causes   also   operated   to  81  111.  App.  493. 

injure  or  kill  the  trees,  the  damages  i28  Lee    v.    Vacuum    Oil    Co.,    54 

must  be  restricted  to  the  injury  the  ^Jlun   156;   7  N.  Y.  Supp.  426. 

defendant  did.  Rauck  v.  Cedar  Rap-  :i2n  pjne  Bluff,  etc.,  Co.  v.  McCain, 

ids  Gas  Co.,  116  Iowa  — ;  89  N.  W.  62   Ark.    118;    34   S.   W.   Rep.   .549; 

Rep-  88.  Lebanon,  etc.,  Co.  v.  Leap,  139  Ind. 

443;   39  N.  E.  Rep.   57. 


LEAKS    AXD    EXPLOSIONS.  TSl 

uted  to  tlie  injury,  for  he  had  no  control  over  the  servant.^^" 
And,  as  has  been  elsewhere  discussed,  the  gas  company  is  not 
excused  where  its  mains  are  injured  by  a  third  jDerson,  so  that 
gas  escape,  if  it  had  notice  of  the  injury  and  failed  to  promptly 
stop  the  flow  of  gas.^'^^  In  a  case  where  a  city  engineer  was 
superintending  the  construction  of  a  sewer,  and  a  gas  main  was 
so  injured  that  gas  escaped,  entered  a  sewer,  and  the  engineer, 
knowing  the  presence  of  gas  in  the  sewer,  entered  it  with  a  light 
which  ignited  the  gas;  it  w\as  held  that  the  failure  of  the  gas 
company  to  repair  the  pipe  was  the  proximate  and  not  the  re- 
mote cause  of  the  injury,  and  that  the  gas  company  was  liable. 
"  The  calamity,"  said  the  court,  "  resulted  from  the  defendant's 
negligence,  and  but  for  the  defective  pipe  there  Avould  have 
been  no  escajDe  of  gas ;  and  if  this  was  not  the  proximate  cause, 
where,  we  ask,  was  the  intervening  one  by  which  the  conse- 
quences of  the  accident  are  to  be  shifted  from  the  defendant  to 
some  other  person  or  thing  ?  "  ^^"  In  another  instance  the  owner 
of  a  house  notified  a  gas  company  to  shut  off  his  supply  of  gas, 
as  he  desired  to  discontinue  its  use.  The  company  sent  its 
servant  to  cut  off  the  gas  at  the  property  line  and  take  out  the 
meter.  The  servant  cut  off  the  supply  by  means  of  a  key  nearly 
four  feet  in  length,  which  he  inserted  in  the  gas  box  at  the 
property  line,  and  then  went  into  the  house  and  removed  the 
meter,  leaving  the  end  of  the  supply  pip€  open.  When  he 
turned  off  the  gas  the  servant  left  the  key  in  the  gas  box,  and 
did  not  remove  it  until  after  he  had  removed  the  meter  and 
returned  to  the  street.  After  leaving  the  house  and  before 
he  reached  the  key  again,  some  one,  without  his  knowledge, 
turned  on  the  gas  by  use  of  the  key.  Xot  more  than  ten  min- 
utes had  intervened.  The  wife  of  the  owner  of  the  house, 
perceiving  there  was  gas  in  the  basement,  went   and  opened 

130  Burrows    v.    March    Gas    and  i3i  Smith  v.  Boston  Gaslight  Co., 

Coke  Co.,  L.  R.  7  Exeh.  96;   41  L.  129  Mass.  318;  Koelsch  v.  Philadel- 

J.  Exch.  46;   26  L.  T.  318;   20   W.  phia   Co..   152   Pa.   St.  355;   25  Atl. 

R.   493.  Rep.  .522;   18  L.  R.  A.  759;   34  Am. 

See  where  a   thief  with  a  candle  St.    Rep.    653. 

caused  an   explosion,   and  the  com-  i32  Oil  City  Gas  Co.  v.  Robinson, 

pany  was  held   liable.     Griffiths   v.  99  Pa.  St.  1;   13  Repr.  253. 
City  of  London  Gas  Co.,  16  Gas  J. 
139. 


732  OIL    AND    GAS. 

the  cellar  door  to  let  in  air;  and  as  it  was  night,  she  took  a 
lamp  to  enter  the  cellar.  As  soon  as  she  opened  the  door  an 
explosion  followed,  injuring  her  severely.  At  the  time  of  the 
explosion  the  gas  was  not  turned  off;  and  the  gas  company 
claimed  it  was  not  liable,  because  it  had  done  its  work  properly, 
and  the  gas  had  been  turned  on  by  a  stranger  without  its  knowl- 
edge. But  the  court  held  that  the  company  was  liable,  on  the 
theory  that  it  was  an  act  of  negligence  in  the  servant  to  leave 
the  key  in  the  gas  box  where  any  busy  meddler  could  turn  it 
on.  Having  undertaken  to  turn  off  the  gas,  it  should  do  so 
thoroughly ;  and  it  was  immaterial  that  some  third  person  turned 
it  on  in  the  manner  described. ^''^  So  where  it  was  charged  that 
the  father,  who  was  the  owner  of  the  house,  injured  the  pipe, 
causing  the  gas  to  escape ;  and  upon  his  request  the  gas  com- 
pany sent  its  servant  to  fix  the  pipe  and  prevent  the  escape  of 
the  gas,  and  he  carelessly  carried  a  lignt  into  the  cellar  where 
the  gas  was  escaping,  igniting  the  gas  and  injuring  the  father's 
child,  it  was  held  that  the  child  could  recover,  the  father's 
neglect  being  the  *'emote  cause.^^*  And  where  a  gas  company 
ought  to  have  foreseen  that  the  construction  of  underground 
works  in  the  street  would  probably  injure  its  pipes,  of  which 
work  the  company  had  knowledge,  and  it  failed  to  furnish  an 
inspector ;  it  was  hel '  liable  where  the  explosion  producing  the 
injury  was  occasioned  by  the  act  of  a  stranger  to  it,  that  it  was 
liable  because  of  its  neglect  to  inspect.  ^■''^  But  where 
the  owner  of  a  private  gas  plant  supplied  a  hotel  with  gas 
and  the  pipe  leading  to  the  hotel  became  so  stopped  or  clogged 
that  gas  would  not  flow  through  it,  and  the  person  Avho  had  con- 
structed the  plant,  but  not  then  in  the  owner's  service,  advised 
the  superintendent  of  the  hotel  owner  to  take  the  weight  out  of 
the  gasometer,  and  the  superintendent  followed  the  suggestion, 
and  thereupon  the  gasometer  turned  over  so  as  to  permit  gas  to 
escape,  causing  an  explosion  ;  it  was  held  that  the  owner  of  the 

1-' Louisville    Gas    Co.   v.    Guten-  *uit  to  recover  for  loss  of  services, 

kiintz.   82  Ky.  432.  another    question    would    have   been 

134  Lannen     v.     Albany     Gaslight  presented. 
Co..   44  N.  Y.   459.  i"5  Koplan  v.  Boston  Gaslis^ht  Co., 

If    the    father    had    brought    the  177  Mass.  15;  58  N.  E.  Rep.  183. 


LEAKS    AND    EXPLOSIONS,  733 

gas  plant  was  not  liable;  for  the  proximate  cause  of  the  injury 
was  the  exiDeriment  made  by  the  superintendent,  there  being  no 
evidence  that  the  owner  employed  incompetent  workmen  to  put 
up  the  plant.  It  was  considered  that  the  clogging  of  the  pipe 
had  no  connection  with  the  accident,  except  as  it  led  to  the  ex- 
periment.^^'^  Where  a  gas  company's  pipes  were  not  connected 
with  a  building  until  the  o^vner  or  lessee  applied  for  gas,  being 
required  to  furnish  a  plan  of  the  pijjes  in  the  building,  and  as 
soon  as  an  application  was  made  and  plans  furnished  it  would 
deliver  a  meter,  leaving  the  applicant  to  make  the  connection, 
without  itself  making  an  examination ;  and  the  lessee  of  a  store- 
room, on  receiving  a  meter,  employed  a  plumber  to  make  a 
connection  with  the  company's  supply  pipe ;  and  from  a  pipe 
running  into  an  apartment  above  the  store,  occupied  by  other 
tenants,  gas  escaped,  killing  the  plaintiff's  intestate ;  it  was  held 
that  it  was  a  question  for  the  jury  whether  the  gas  company  had 
used  reasonable  precautions.^^"  In  a  Massachusetts  case  it  was 
said :  "  If  the  ig-nition  of  the  gas  by  a  natural  cause,  or  by 
some  other  person,  ought  to  have  been  foreseen  as  a  probability, 
the  defendant  is  liable."  "^ 

§638.     Gasfitter  igniting  escaping  gas. 

A  gas  company  may  become  liable  to  the  owner  of  property 
injured  by  the  explosion  of  escaping  gas,  even  though  it  was 
ignited  by  the  carelessness  of  a  plumber  or  his  servant  em- 
ployed to  repair  or  change  the  plumbing  in  the  house.  Thus 
where  a  gas  compiany  put  in  a  defective  supply  pipe  between 
its  mains  and  the  meter  on  plaintiff's  premises,  whereby  gas 
escaped  into  the  building;  and  a  -workman  in  the  employ  of  a 

136  Taylor    v.    Baldwin,    78    Cal.  i37  Scheemer  v.  Gaslight   Co.,   147 

517;  21  Pac.  Rep.   124.  X.  Y.   529;   42   N.   E.  Rep.   202;    30 

By  permitting  a  consumer  to  em-  L.   R.   A.   653;    reversing  26   X.   Y. 

ploy  a  plumber  to  put  in  a  gas  pipe  Supp.  1128;  65  Hun  378.  and  20  N. 

and   turn   on   the   gas,    a   gas   com-  Y.  Supp.   168. 

pany  does  not  make   such   plumber  i38  Koplan  v.  Boston  Gaslight  Co., 

its  agent,  so  as  to  render  it  liable  supra ;  Hampton  v.  Cradley  Heath 

for     an     explosion     caused    by    the  Gas  Co.,  14  Gas  J.  606. 
plumber's       negligence.       Flint      v. 
Glouster  Gaslight  Co.,  3  Allen  343. 


734  OIL    AND    GAS. 

gasfitter,  called  by  the  plaintiff  to  put  in  pipes  leading  from 
the  meter  to  the  burners,  negligently  took  a  lighted  candle  for 
the  purpose  of  finding  out  whence  the  ^-as  proceeded;  where- 
upon an  explosion  followed  by  reason  of  the  contact  of  the  gas 
with  the  candle  flame,  it  was  held  that  the  plaintiff  could  re- 
cover damages  for  the  injury  to  his  house  occasioned  by  the 
explosion,  that  the  damages  were  not  too  remote,  and  that  it 
could  not  be  considered  that  the  plaintiff  contributed  to  the  in- 
jury, for  the  workman  was  not  under  his  control/^''  And  in  a 
Xew  York  case,  where  the  pipe  Avas  broken  by  frost  in  conse- 
quence of  its  having  been  laid,  by  the  defendant,  too  near  the 
surface  of  the  gi'ound,  from  which  gas  escaped  into  the  cellar^ 
it  was  held  that  the  plaintiff  could  recover  damages  caused  by 
an  explosion  occasioned  by  a  plumber,  whom  he  had  called  to 
ascertain  where  the  leak  was,  opening  the  cellar  door,  holding  in 
his  hand  a  lighted  candle ;  and  it  mikde  no  difference  that  the 
plumber  may  have  been  guilty  of  negligence,  for  he  was  not  the 
agent  of  the  plaintiff  so  as  to  make  the  latter  answerable  for 
his  negligence,  for  where  a  person  sustains  an  injury  from 
the  separate  negligence  of  two  persons  employed  to  do  two 
separate  things,  he  may  maintain  an  action  against  both  or 
either/*"  Where  it  was  claimed  by  the  defendant  that  the  leak 
occasioned  by  the  city  officers  not  properly  packing  the  earth 
under  the  pipe  that  broke  in  building  a  sewer,  it  was  held  that 
"  the  defendants,  in  managing  a  dangerous  element,  were  bound 
not  only  to  use  due  care  on  the  part  of  themselves  and  their 
servants,  but  also  to  use  due  care  to  prevent  injury  from  the 
careless  or  wrongful  meddling  with  their  works  on  the  part  of 
others;  that  they  could  not  interfere  with  or  prevent  the  city 
from  building  a  sewer,  but  they  had  a  right  to  and  were  bound 
to  see  that,  in  restoring  the  earth  to  its  place,  their  own  pipes 

A  contractor  paving  a  street  who  R.   7   Exch.    96;   L.  R.   5  Exch.   67; 

negligently  disturbs  the  gas  mains,  41   L.   J.   Exch.   46;    26   L.   T.   318; 

whereby  the  gas  escapes,  an  explo-^  20   W.    R.   493;    Mersey  Docks   and 

sion  follows,  and  a   passerby  is  in-  Harbor  Board  v.  Liverpool,  etc.,  Co., 

jured,   will   be   liable.      Fellwood  v.  26  Gas  J.  327. 
Pearson,  23  Gas.  J.  248.  140  Schermerhorn   v.  Metropolitan 

139  Burrows  v.  March  Gas  Co.,  L.  Gaslight  Co.,  5  Daly  144. 


LEAKS  a:xd  explosio^^s.  735 

were  properly  supported,  and,  if  injured,  to  see  that  the  injury 
was  repaired  as  soon  as  it  could  reasonably  be  done  " ;  and  that 
whether  the  defendant  had  exercised  due  care  in  these  particu- 
lars was  a  question  for  the  jury.' 


141 


§639.     Negligence  of  fellow  servant. 

The  rule  in  negligence  cases  with  regard  to  fellow  servants 
applies  to  gas  explosions  or  leaks.  Thus  if  a  servant  of  a  gas 
company,  who  was  a  fellow'  servant  with  the  plaintiff,  cause 
the  explosion,  there  can  be  no  recovery.^*"  In  the  case  just  cited 
there  was  really  no  negligence  on  the  part  of  the  company,  for 
it  had  used  proper  appliances ;  but  the  explosion  was  occasioned 
by  the  act  of  a  fellow  servant  in  carelessly  lighting  a  match 
near  the  escaping  gas.  The  same  rule  was  announced  in  a  case 
where  a  fellow  servant  caused  an  explosion  in  a  mine.^*^  ^Miere 
an  employee  of  a  gas  company,  under  the  direction  of  the  com- 
pany's superintendent,  went  into  a  trench  to  repair  a  leak  in  a 
gas  main ;  and  the  superintendent  approached  with  a  lighted 
lantern,  and  the  escaping  gas  ignited,  causing  an  explosion ;  it 
was  held  that  the  action  of  the  superintendent  in  approaching 
the  trench  with  the  lighted  lantern  was  the  proximate  cause 
of  the  injury,  and  that  under  a  statute  providing  that  where  the 
injury  resulted  from  the  negligence  of  any  person  in  the  service 
of  a  corporation  to  whose  order  or  direction  the  injured  em- 
ployee at  the  time  of  the  injury  was  bound  to  conform  and 
did  conform,  the  company  was  liable,  the  plaintiff  could  re- 
cover,"*    A  similar  result  was  reached  where  no  statute  seemed 

1-11  Butcher     v.     Providence     Gas  Tipton     Light,     etc.,     Co.     v.     Xew- 

Co.,  12  R.  I.  149;  34  Am.  Rep.  626.  comer    (Ind.   App.),  67   X.   E.   Rep. 

A  gas  company  is  not  liable  when  548. 

the  injury  is  occasioned  wholly  by  142  Allegheny      Heating      Co.      v. 

the  neglect  of  a  gasfitter,  called  by  Rohan.    118    Pa.    St.    22.3;    11    Atl. 

the  property  owner.    German  Amer-  Rep.    780 ;     \Yarren    v.    Wilder,    20 

lean   Ins.   Co.   v.   Standard  Gaslight  Gas  J.  892. 

Co.,  67  N.  Y.  App.  Div.  539;   73  X.  i«  Lehigh     Valley    Coal     Co.     v. 

Y.  Supp.  973.  Jones.  86  Pa.   St.  432. 

If  the  explosion  is  occasioned  by  i**  Indianapolis   Gas   Co.   v.    Shu- 

the  superintendent  of   the  company  mack,    23   Ind.   App.   87;    54   N.   E. 

in    searching    for    a    leak    with    a  Rep.  414. 
light,    the    company   will   be   liable. 


736  OIL    AND    GAS. 

to  control  it."^  And  in  a  case,  not  strictly  in  line  with  the 
subject  matter  of  this  section,  where  the  action  was  against  a 
chemical  company  for  injuries  sustained  in  inhaling  fumes  of 
nitric  acid,  the  fact  that  the  complaining  person  left  his  work, 
saying  he  could  not  endure  it,  and  thereupon  the  superintend- 
ent assured  him  they  would  not  hurt  him,  it  was  held  that  it 
was  not  shown  that  the  employee  so. injured  knew  or  had  reason 
to  know  the  fumes  would  do  him  a  permanent  injury,  and  that 
it  was  not  negligence  for  him  to  return  to  work.^'*" 

§640.     Person  on  premises  by  license. 

A  gas  company  not  only  owes  a  duty  to  the  owner  of  the  prem- 
ises and  the  inmates  thereof,  hut  also  to  all  who  are  rightfully 
upon  or  rightfully  come  upon  the  premises,  or  who  come  there 
with  the  express  or  implied  permi^ion  of  the  owner.  This 
Avill  include  not  only  the  servants  of  the  owner,  but  all 
the  servants  of  a  contractor  repairing  or  working  upon  the  prem- 
ises, all  persons  employed,  whether  by  the  day  or  by  the  piece, 
to  work  thereon  or  sent  there  by  another  to  do  work.^*^  The 
rule  is  broad  enough  to  include  a  guest  of  the  owner  of  the 
premises.^*^  The  negligence  of  the  owner  in  causing  the  ex- 
plosion, where  the  gas  company  has  also  been  negligent,  will  not 
defeat  such  person's  right  to  recover,  even  though  their  com- 
bined negligence  was  required  to  cause  an  explosion.^*'' 

145  Citizens'  Gaslight  and  Heating  company  did  not  raise  the  relation 
Co.  V.  O'Brien,  15  111.  App.  400;  of  fellow  servant,  see  Hatfield  v.  St. 
affirmed  118  111.  174;  Citizens'  Gas-  John  Gaslight  Co.,  32  N.  B.  100. 
light  and  Heating  Co.  v.  O'Brien,  i47  Washington  Gaslight  Co.  v. 
19  111.  App.  231;  affirmed  in  Citi-  Eckhoflf,  22  Wash.  L.  Rep.  656;  4 
zens'   Gaslight   and   Heating   Co.   v.  App.  D.    C.   174. 

O'Brien,  118  111.   174;  8  N.  E.  Rep.  i48  Defiance  Water  Co.  v.  dinger, 

310.  54  Ohio  St.  532;  35  Ohio  L.  J.  323, 

146  Wagner  v.  Brew  Chemical  Co.,  350;  44  N.  E.  Re'p.  238;  32  L.  R.  A. 
147  Pa.  St.  475;  29  W.  N.  C.  490;  736.     See  note  150  of  this  section. 
?3    Atl.     Rep.     722,    distinguishing.  i-to  Pullman    Palace    Car    Co.    v. 
Beittenmiller   v.    Bergner,    etc.,    Co.  Laack.  143  111.  242;   32   K  E.  Rep. 
(Pa.),  12  Atl.   Rep.  599.  385;   18  L.  R.  A.  215;   affirming  41 

For    a    case    where   a    servant    of       Til.  App.  34;   Richmond  Gas  Co.  v. 
one    company   working   for    another       Baker,  146  Ind.  600;   45  N.  E.  Rep. 


!LEAivS  a:s:d  explosioxs.  <  6 1 

§641.     Guest  or  inmate  of  family  may  recover  from  gas  company 
where  owner  is  negligent. 

A  person  making  one  of  a  family  may  recover  for  personal 
injuries  occasioned  by  an  explosion  in  the  Jiouse,  and  is  not 
chargeable  with  the  negligence  of  the  head  of  the  family  or 
owner  of  the  dwelling,  or  of  any  member  of  the  family  with 
respect  to  the  danger  of  gas  escaping  into  the  dwelling  house/^** 

§642.     Lessee's  right  of  action  against  the  gas  company. 

The  lessee  or  tenant  has  a  right  of  action  against  the  gas 
company  for  negligently  permitting  gas  to  escape  upon  the 
leased  premises  and  injuring  his  possessory  interest  —  as  be- 
fouling a  well  —  while  the  landlord  must  bring  the  action  for 
any  injury  the  reversion  may  sustain.  If  the  act  of  the  gas 
company  made  the  enjoyment  of  the  estate  less  beneficial,  or 
in  any  way  rendered  it  more  expensive  or  inconvenient,  without 
fault  on  his  part,  he  is  entitled  to  such  damages  as  he  has  thus 
suffered.^'^ 

§643.     Third  person  causing  gas  to  escape,  liability. 

If  a  third  person  —  one  not  connected  with  a  gas  company, 
and  for  whose  act  it  is  not  liable  —  negligently  cause  gas  to  es- 
cape to  the  injury  of  a  person,  he  will  be  liable  to  such  person 
for  all  damages  sustained.  Thus  where  a  municipality  in  con- 
structing a  sewer  did  the  work  in  such  a  negligent  manner  as  to 

1049;  36  L.  R.  A.  683;  McGahan  v.  lessor  recovering  a  judgment  for  an 

Indianapolis,  etc.,  Co.,  140  Ind.  335 ;  injury  to  his   interest  in  the  prop- 

37  N.  E.  Eep.  601 ;  29  L.  R.  A.  355  erty.—  the  action  not  heing  between 

(a  plumber).  the  same  parties  nor  between  their 

150  Richmond    Gas    Co.    v.    Baker,  privies.    Bartlett  v.  Boston  Gaslight 
146  Ind.  600;   45  N.  E.  Rep.   1049;  Co.,   122  Mass.  209. 

36  L.  R.  A.  683.     See  case  cited  in  Of  course,   for   an    injury   to   tlic 

note   148  of  this  section.  person,   the   question   of  tenancy   is 

151  Sherman    v.    Fall    River    Iron  not  involved,  though   the  injury  oc- 
Works  Co.,  2  Allen   524.  curs  in  the  house  the  p]aintiff  has 

The  faihu'e  of  the  lessee  to  re-  leased.  Ottei-back  v.  Philadelphia, 
cover  a  judgment  is  no  bar  to  the       161  Pa.  St.  Ill;  28  Atl.  Rep.  991. 


738  OIL    AND    GAS. 

cause  the  gas  pipe  to  break  for  lack  of  support,  whereby  gas 
escaped  into  the  plaintiff's  house  so  as  to  cause  an  explosion,  the 
municipality  was  held  liable,  and  could  not  escape  liability  by 
delegating  the  construction  of  the  sewer  to  a  contractor/^"  A 
natural  gas  company  furnished  a  mill  with  gas.  The  pipes  were 
arranged  so  that  gas  passed  through  a  "  regulator,"  which  re- 
duced the  pressure  before  it  reached  the  meter.  There  was  a 
pipe,  called  a  "  by-pass,"  through  which  gas  could  be  turned 
into  the  meter  at  the  full  pressure  of  the  main.  The  owner  had 
control  of  both  the  cock  used  to  turn  on  the  gas  through  the 
"  regulator  "  and  the  one  to  turn  it  on  through  the  "  by-pass." 
The  plaintiff  entered  the  mill  to  seek  work,  and  as  he  was  leaving 
the  mill  owner,  in  turning  on  the  gas,  accidently  turned  the  cock 
admitting  the  full  pressure.  The  result  was  that  the  meter  ex- 
ploded, injuring  the  plaintiff.  It  Avas  held  that  the  gas  com- 
pany was  not  liable  ;  for  the  only  negligence  was  that  of  the  mill 
owner.^^^ 

§644.     Gas  turned  on  by  owner  or  stranger. 

If  the  owner  of  the  property  or  a  stranger  turn  on  the  gas  at 
the  property  line  the  gas  company  will  not  be  liable  to  such 
owner  for  injuries  occasioned  by  an  explosion  of  the  gas,  thus 
turned  on,  occurring  uix)n  such  property.  The  gas  company  has 
a  right  to  control  the  turning  on  of  gas ;  the  stop-cocks  at  the 
property  line  is  its  own  property,  and  under  its  control.  The 
mere  fact  that  the  gas  company  did  not  object  to  the  gasfitter 
putting  pipes  in  a  building  for  the  owner  to  turn  on  the  gas  at 
the  property  line  will  not  make  it  liable  to  such  owner  for  an  in- 
jury occasioned  by  an  explosion  occurring  in  the  building  be- 
cause of  the  defective  piping  or  failure  to  close  up  pipe  ends. 
And  there  are  two  reasons  for  this :  first,  the  gas  company  has 
no  control  over  the  piping  within  the  building;  and  second,  the 

i52Hardaker   v.   Idle   Dist.   CouI^  1 53  Triple   State,   etc..   Gas   Co.   v. 

oil    [1896],    1    Q.    B.    335;    65   L.   J.  Wellman    (Ky.),  70  S.  W.  Rep.  49; 

Q.  B.    (N.  S.)   363:  74  Law  T.  Rep.  24  Ky.  L.  Rep.  851. 
69 :  44  W.  R.  323 ;  60  J.  P.  196. 


LEAKS    AND    EXPLOSIONS.  739 

gasfitter  is  not  its  ageiit.^^*  Nor  is  the  gas  company  liable,  al- 
tliongli  it  otherwise  would  have  been,  for  the  act  of  a  former 
employee  turning  on  the  gas,  where  the  consumer  requesting  it 
to  be  turned  on  knew  he  was  not  then  in  the  company's  em- 
ploy ;  and  the  fact  that  such  jjerson  may  have  turned  on  the  gas 
for  other  persons,  in  which  the  gas  company  acquiesced,  does  not 
make  it  liable,  where  the  consumer  knew  he  was  not  its  em- 
ployee.^^^  Where  a  natural  gas  company  had  high  and  low 
pressure  mains,  controlled  by  valves  securely  enclosed  in  a  box ; 
and  an  employee  of  another  natural  gas  company,  desiring  to 
take  water  out  of  the  pipes  of  his  company,  opened  the  gas  box 
by  mistake  and  turned  on  the  gas  from  the  high  pressure  main 
to  the  low  pressure  main ;  and  the  gas,  thus  turned  on,  flowed 
into  the  pipes  of  a  house  supplied  from  such  low  pressure»main, 
and  bursted  the  gas  fixtures,  causing  a  fire  and  damages  to  the 
house ;  the  gas  company  whose  valves  he  had  thus  turned  was 
held  not  liable,  for  its  act  had  not  caused  the  injury,  and  it  had 
taken  proper  precautions  to  protect  its  valves  from  intermed- 
dling. But  the  gas  company  whose  employee  had  thus  inad- 
t^ertently  turned  the  valves  was  held  liable,  although  at  the  time 
he  did  so  there  was  little  gas  in  the  high  pressure  main,  it  hav- 
ing been  turned  off  to  make  needed  repairs ;  and  the  fact  that  the 
company  owning  the  mains  may  have  been  negligent  in  with- 
drawing the  gas,  or  that  the  meter  and  regulators  were  out  of 
order,  was  held  to  be  no  defense ;  for  neither  company  could 
escape  if  the  concurring  negligence  of  both  of  them,  if  such  was 
the  case,  produced  the  result.^^*'  But  where  the  owner  of  a 
building  requested  th-e  gas  company  to  cut  off  his  gas  and  re- 
move its  meter ;  and  the  company  sent  its  employee,  who  cut  off 
the  gas  at  the  street  curbing  Avith  a  key  several  feet  long  which 
he  inserted  in  the  gas  box  for  that  purpose  and  left  there  while 
he  went  into  the  house  to  remove  the  meter;  and  after  he  had 
removed  the  meter  and  before  he  reached  the  gas  box  —  a  period 

154  Flint    V.    Gloucester  Gas    and  i56  McKenna  v.  "Bridge  Water  Gas 
Light  Co.,   3   Allen   343.                            Co.,   103  Pa.  St.   633;   45   Atl.  Rep. 

155  Flint    V.    Gloucester  Gas    and       52 ;  47  L.  R.  A.  790. 
Light  Co.,  9  Allen  552. 


7-iO  OIL    AND    GAS. 

of  only  a  few  minutes  —  some  unknown  meddlesome  person 
turned  on  the  gas  again,  of  which  fact  the  employee  was  ig- 
norant; and  shortly  thereafter  an  injury  was  occasioned  by  the 
gas  escaping  from  the  end  of  the  service  pipe  extending  into  the 
cellar,  it  was  held  that  the  gas  company  was  liable  for  the  act  of 
the  stranger,  because  of  the  fact  of  the  employee's  negligence  m 
leaving  the  key  in  the  position  he  did/"^ 

§645.     Landlord's  right  of  action  against  tenant. 

■  There- is  no  doubt  that  if  a  tenant  carelessly  or  negligently 
cause  an  explosion  of  escaping  gas  in  the  house  he  is  occupying, 
although  he  in  no  way  caused  the  gas  to  escape,  he  would  be 
liable  to  his  landlord  for  the  damages  the  house  sustained ;  and 
much  more  so  would  he  be  liable  if  he  caused  the  gas  to  escape. 

§646.     Tenant's  right  of  action  against  landlord. 

A  tenant  may  have  a  cause  of  action  against  his  landlord, 
where  he  has  suffered  a  damage  from  escaping  gas  by  reason  of 
the  latter's  negligence.  Thus  where  a  landlord  had  the  meter 
removed  from  the  house,  and  the  fixtures  from  the  gas  pipe,  by 
a  gas  man,  who  left  one  of  the  pipes  open  and  uncovered  in  an 
upper  room,  which  was  afterwards  let  to  and  occupied  by  his 
tenant ;  and  the  landlord  subsequently  gave  the  tenant  of  the 
lower  floor  permission  to  introduce  gas  into  the  house,  which  he 
did,  without  notifying  the  other  tenant;  and  the  gas  pipes  in  the 
first  tenant's  apartment  had  been  left  open,  by  reason  of  which 
the  room  filled  with  gas,  and  when  she  entered  the  room  with  a 
candle  an  explosion  occurred,  injuring  her  greatly ;  it  was  held 
that  the  landlord  was  guilty  of  negligence,  even  though  the 
direct  cause  of  the  accident  was  the  negligence  of  the  gas  man 

157  Louisville    Gas    Co.   v.    Gutcn-  it   damages  the   building,   the   land- 

kuntz.  82  Ky.  432.    The  question  of  lord    cannot     recover    damages    for 

neglect  to  close  the  end  of  the  pipe  the   injury    from   the   gas   company, 

does  not  seem  to  have  controlled  the  Creel    v.    Charleston,    etc..    Gas    Co.. 

case.  51  W.  Va.  129;  41  S.  E.  Rep.  174. 

If  a  tenant  turns  on  the  gas,  and 


LEAKS    AND    EXPLOSIOXS.  741 

in  not  having  sufficiently  closed  the  fixtures/^^  But  a  landlord 
is  not  liable  to  an  employee  of  his  tenant  for  an  injury  resulting 
from  an  explosion  of  gas,  caused  by  defective  plumbing  done  by 
a  former  tenant  of  the  building,  who  employed  a  competent 
plumber  to  do  the  work,  in  which  the  defects  were  not  apparent 
and  of  which  such  landlord  had  no  actual  knowledge/^^ 

^647.     Owner  of  premises  liable  to  injured  person. 

The  owner  of  the  premises  may  himself  be  so  guilty  of  negli- 
gence as  to  be  liable  to  any  one  rightfully  upon  them  who  is 
injured  by  an  explosion.  Thus  if  gas  be  escaping  in  a  danger- 
ous quantity,  and  he  knowing  of  the  escaping  gas  and  the  extent 
of  it,  invite  another  on  the  premises,  and  does  not  warn  him, 
and  an  explosion  occurs  whereby  the  person  so  invited  is  injured, 
such  owner  will  be  liable  if  he  negligently  caused  the  explosion. 
Where  a  servant  of  a  water  company  went  upon  certain  premises, 
in  discharging  his  duty,  to  ascertain  from  a  water  meter  the 
amount  of  water  used  by  the  owner  of  the  premises,  and  was 
killed  by  an  explosion  of  gas  that  had  escaped,  the  owner  of  such 
premises  was  held  liable;  for  the  person  killed  was  rightfully 
on  the  premises,  lieing  more  than  a  licensee,  under  an  implied 
invitation  of  the  owner.  The  mere  fact  that  the  deceased 
smelled  gas  was  considered  not  to  be  such  contributory  negli- 
gence on  his  part  as  should  necessarily  defeat  him ;  for  he  was 
acting  under  the  stress  of  a  duty.^^** 

138  Kimmel   v.    Burfeind,    2    Daly  tion    not    being    between    the    same 

lo5.     The  question  of  the  plaintiff's  parties   nor  their  privies.     Bartlett 

due   care  was  not  considered.  v.   Boston   Gaslight   Co..    122   :^Ias3, 

Where   the    tenant    has    sued    the  209. 

gas   company   for   an    injury  to   his  i59  Metzger    v.     Shultz,     16    Ind. 

leasehold,  and  failed  to  recover  judg-  App.    454;    43   N.   E.    Rep.    886.    re- 

ment   upon  the  merits  of  the   case.  hearing  denied.  45  X.  E.  Rep.  619. 

such  judgment  is  not  a  bar  to   the  ifio  Finegan    v.    Fall     River    Gas 

landlord    recovering    for    an    injury  Works.    159    Mass.    311;    34    N.    E. 

to  his  reversionary  interest,  the  ac-  Rep.    523. 


742  OIL    AND    GAS. 

§648.    Plaintiff  must  show  due  care  on  his  part. —  Contributory 
negligence. 

The  burden  rests  upon  the  plaintiff  to  show  that  he  was  act- 
ing with  due  care  and  with  ordinary  prudence  when  the  accident 
occurred;  or  in  other  words,  his  act  did  not  contribute  to  the 
injury.  Ordinary  care  is  all  that  is  required  of  him ;  but,  of 
course,  what  is  ordinary  care  will  depend  upon  the  amount  of 
danger  and  the  extent  of  the  plaintiff's  knowledge  of  the  dan- 
"■er."^  One  has  no  right  to  expose  himself  to  the  mischievous 
effect  of  gas,  and  if  injured,  hold  the  gas  company  liable;  and 
the  burden  rests  upon  him  to  show  that  he  did  not  do  so."-  If 
the  plaintiff,  by  the  exercise  of  diligence,  could  have  ]u-cventcd 
the  injury,  he  cannot  recover;  and  if  the  injury  was  a  continu- 
ing one,  and  the  company  could  have  stoy^ed  the  continuation  of 
the  loss  if  it  had  been  notified  of  it,  he  cannot  recover  for  any 
loss  sustained  after  it  became  his  duty  to  notify  the  company  of 
such  continuation,  his  act  being  considered  as  contributing  to 
the  loss  sustained  after  the  duty  of  informing  the  company  has 
been  imposed  upon  him.^*'^  Where  the  plaintiff's  house  was  sup- 
plied with  gas,  but  another  company  had  a  gas  main  ninety  feet 
away  from  which  gas  escaped,  which  passing  under  the  ground 
entered  her  cellar,  and  there  exploded ;  and  although  plaintiff 
supposed  the  gas  she  detected  w^as  from  the  company's  pipes  that 
supplied  her  Avith  gas,  though  she  knew  of  the  gas  leak  in  the 
other  company's  main,  yet  it  was  held  that  she  was  not  giiilty 
of  such  contributory  negligence  as  would  defeat  a  recovery."* 

161  Holly  V.  Boston  Gaslight  Co.,  to  the  burden  of  showing  contribu- 

8  Gray  123;   69  Am.  Dec.  233;   Lee  tory  negligence. 

V.    Troy   Citizens'   Gaslight   Co..   98  i62  Holly  v.  Boston  Gaslight  Co., 

N.  Y.  115;   Bartlett  v.  Boston  Gas-  supra. 

light   Co.,   117   Mass.    533;    19   Am.  i63  Hunt  v.   Lowell   Gaslight   Co., 

Rep.  421;    Schmeer  v.  Gaslight  Co.,  1  Allen  343. 

147  N.  Y.  529;  42  N.  E.  Rep.  202;  le*  Consumers'  Gas  Co.  v.   Perre- 

30  L.  R.  A.  653;  German  American  *■  go,    144    Ind.    350;    43    N.   E.    Rep. 

Ins.   Co.   V.   Standard   Gaslight   Co.,  306;    32  L.  R.  A.   146, 

67   N.  Y.  App.  Div.   539;    73  N.  E.  Where  gas   was   leaking  into  the 

Supp.    973.     That    is,    where    some  plaintiff's    cellar   from    a    gas   pipe, 

statute  does  not  change  the  rule  as  and    the    company's    superintendent 


LEAKS    AND    EXPLOSIONS.  743 

"  The  leak  was  across  the  street  from  appellee,"  said  the  court. 
"  She  did  not  receive  her  gas  from  the  appellant.  It  is  hard, 
therefore,  to  understand  how  she  should  have  thought  that  the 
leak  at  appellant's  sleeve,  ninety  feet  distant,  even  if  she  knew 
its  existence,  which  does  not  appear  from  the  evidence,  could 
have  been  the  source  of  any  danger  to  her."  Where  the  suit  was 
to  recover  for  injuries  incurred  from  escaping  gas,  the  plaintiff, 
to  establish  due  care  on  his  part,  it  was  held  could  not  prove  that 
the  gas  company's  agent  advised  the  occupants  of  a  neighboring 
house,  into  which  the  gas  had  escaped  from  the  same  leak,  what 
to  do  to  avoid  the  ill  consequences  from  it,  and  that  he  did  the 
same  things  thus  advised,  if  such  agents  gave  him  directions  re- 
specting the  matter."^ 

§649.     Owner  removing  from  his  premises. 

The  circumstances  may  be  such  as  to  require  the  owner  or 
occupants  of  a  house  to  vacate  it  in  order  to  avoid  injury  to  him- 
self;  and  if  he  do  not  he  will  be  guilty  of  such  contributory 
negligence  as  will  bar  a  recovery.  Thus  where  the  plaintiff's 
health  was  injured  by  inhaling  gas  escaping  from  a  defective 
main  in  the  street  and  entering  his  dwelling  house,  it  was  held 
to  be  a  want  of  due  care  on  his  part  to  remain  in  the  house, 
after  he  had  a  reasonable  opportunity  to  procure  another  house 
or  place  of  residence  and  to  remove  thither ;  and  that  the  gas 
company  could  not  properly  be  held  liable  in  damages  for  conse- 
quences which  ensued  after  such  removal  might  have  been 
made."®  So  where  the  plaintiff  was  a  minor  living  with  his 
father,  and  was  injured  by  inhaling  gas  at  night,  which  had 
escaped  from  a  street  main  during  the  day  previous,  and  of 
which  the  gas  company  was  not  notified  until  the  afternoon,  it 

came  to  locate  the  leak,  and  plain-  was  not  guilty  of  negligence  con- 
tiff  went  into  the  cellar  at  his  re-  tributing  to  the  explosion.  Tipton 
quest,  but  remained  no  longer  than  Light,  etc.,  Co.  v.  Newcomer  (Ind. 
was  necessary  to  point  out  the  place  App.).  67  N.  E.  Rep.  548. 
of  the  supposed  leak,  and,  without  ics  Emerson  v.  Lowell  Gaslight 
warning  her,  the  superintendent  Co.,  3  Allen  410. 
lighted  a  match,  causing  an  explo-  lee  Hunt  v.  Lowell  Gaslight  Co., 
sion,  it  was  held  that  the  plaintiff  1   Allen   343. 


744:  OIL    AND    GAS. 

was  held  that  the  phiintiff  could  not  maintain  his  action  if  his 
father  failed  to  adopt  snitable  precaution  against  the  hurtful 
effect  of  the  gas  after  it  was  discovered  to  be  filling  the  house ; 
and  that  it  was  for  the  jury  to  decide  whether  there  was  not  a 
manifest  want  of  prudence  in  remaining  in  the  house  after  it 
became  known  to  the  inmates  that  it  was  being  filled  with  gas,^" 
Where  a  strong  smell  of  gas  prevailed  throughout  the  dwelling 
house,  and  the  gas  company  sent  its  servant  to  repair  the  leak, 
who,  after  professing  that  he  had  made  the  necessary  repairs, 
informed  the  family  that  all  Avas  safe,  and  assured  them  that 
the  odor  of  gas  came  from  a  gas  post  in  the  street,  it  was  held 
not  negligence  on  their  part  for  the  members  of  the  family  to 
remain  in  the  house  after  receiving  such  assurance/^®  Of 
course,  the  rule  is  not  so  stringent  as  to  require  the  occupant  to 
leave  the  house  as  soon  as  he  smells  tjge  escaping  gas,  for  the 
odor  may  be  slight,  although  unusual.  But  even  though  the 
amount  be  small,  yet  it  may  so  accumulate  as  to  render  it  dan- 
gerous, either  by  reason  of  an  injury  inflicted  uix)n  him  by  an 
explosion  or  to  his  health,  to  remain  in  the  house ;  or  the  gas 
may  escape  in  such  volume  as  to  require  immediate  action  on 
his  part.  But  he  is  not  bound  to  remove  before  making  a  timely 
effort  to  stop  the  flow  of  escaping  gas  or  to  have  the  gas  com- 
pany stop  it ;  unless  it  is  clear,  or  there  is  a  strong  presumption, 
that  it  would  be  dangerous  to  remain  longer  in  the  house.^*^'* 
Of  course,  the  removal  here  discussed  is  a  removal  of  the  per- 
son and  not  of  his  goods ;  for  he  is  not  bound  to  risk  his  health 
in  -removing  them,  and  there  is  not,  usually,  much  likelihood 
that  they  will  be  injured. 

§650.     Duty  of  property  owner  to  cut  off  supply  of  gas. 

The  owner  of  the  property  must  cut  off  the  gas  when  discon- 
tinuing the  supply,  where  the  means  of  cutting  it  off  is  on  his 

167  Holly  V.  Boston  Gfisliirht  Co.,       14G  Ind.  600;   45  N.   E.  Rep.   1040; 
8  Gray  123;  69  Am.  Dec.  233.  36  L.  R.  A.  683. 

168  Richmond    Gas    Co.    v.    Baker,  igo  Kibele     v.     Philadelphia.     105 

Pa.   St.  41. 


LEAKS    A^^D    EXPLOSIONS.  7-i5 

own  premises,  or  at  least  within  his  buildings ;  and  the  gas 
company  is  under  no  duty  to  enter  the  building  and  cut  off  the 
gas  in  order  that  explosions  may  be  prevented.  Thus  where 
the  stop-cock  was  within  the  house,  situated  between  the  inner 
wall  and  the  meter ;  and  the  last  tenant,  on  removing,  gave  the 
usual  notice  that  he  did  not  require  any  further  supply;  and 
one  of  the  gas  company's  workingmen,  at  the  tenant's  request, 
removed  the  chandelier  from  one  of  the  rooms,  leaving  the  end 
of  the  pipe  properly  secured,  the  internal  fittings  being  the 
property  of  the  owner  of  the  house ;  and  while  the  house  re- 
mained untenanted,  the  gas  by  some  unexplained  means  escaped, 
an  explosion  occurred,  and  the  house  was  injured ;  it  was  held 
that  the  company  could  not  be  held  liable  on  the  theory  that  it 
was  its  duty  to  cut  off  the  supply  of  gas,  but  the  property  owner 
was  guilty  of  contributory  negligence  for  not  having  turned 
the  stop-cock  so  as  to  shut  off  the  flow  of  gas.^^°  In  another  in- 
stance where  the  consumer  was  informed  that  the  employee 
who  had  turned  on  the  gas  was  not  authorized  to  do  so,  that  it 
was  the  duty  of  another  employee  to  turn  it  on,  that  there  was 
a  leak  in  the  regulators,  and  that  it  could  not  attend  to  the  leak 
before  the  next  morning,  it  was  held  that  the  failure  of  the 
consumer  to  turn  off  the  gas  on  receiving  this  information  of 
the  defect  was  such  negligence  as  precluded  a  recovery. ^^^ 

§651.     Searching  for  leaks  with  a  light. 

Courts  will  not  say  as  a  matter  of  law  that  it  is  contributory- 
negligence  to  search  for  leaking  gas  with  a  lighted  candle  or  by 
the  use  of  matches.  It  is  not  negligence  per  se  to  thus  search 
for  escaping  gas.^""  jSTor  is  taking  a  lighted  lamp  into  a  cellar 
filled  with  gas  an  act  of  contributory  negligence,  as  a  matter  of 
law,  Avhich  will  preclude  a  recovery  for  injuries  occurring  ten 

i70Holden    v.   Liverpool    Gas   Co..  1^2  pine  Bluff,  etc.,  Co.  v.  Schnei- 

3  C.   B.   1;    1.5  L.  J.  C.  P.  301;    10  der,   62    Ark.    109;    34    S.   W.   Rep. 

Jur.   883.  ,547;  33  L.  R.  A.  366;  People's  Gas- 

171  Kohler    Brick    Co.    v.    N.    W.  liorht  and  Coke  Co.  v.  Amphlett,  93 

Ohio,    etc.,    Gas    Co.,    11    Ohio    Cir.  111.   App.    194. 
Ct.  319;   5  Ohio  Cir  Dec.  379. 


746  OIL    AX  I)    GAS. 

minutes  later,  altliougii  the  person  injured  knew  at  the  time  he 
took  the  light  into  the  cellar  that  it  was  filled  with  gas/'^  In 
such  instances  the  question  of  contributory  negligence  in  thus 
searching  for  escaping  gas  is  one  for  the  jury.^"'*  And  where 
the  tenant  of  the  plaintiff  having  smelt  escaping  gas,  which  he 
reasonably  supposed  proceeded  from  the  furnace,  and  under  that 
impression  went  with  a  lighted  candle  into  the  cellar  to  examine 
such  furnace,  it  was  held  that  there  was  not  such  contributory 
negligence  as  prevented  a  recovery  for  the  damages  occasioned 
by  an  explosion,  the  candle  having  come  in  contact  with  gas 
escaping  from  the  defendant's  pipe/'^  "  The  other  ground  of 
defense,  as  to  the  contributory  negligence  of  the  plaintiff's  in- 
testate," said  the  court  in  one  case,  "  we  do  not  think  should  be 
taken  from  the  jury.  Sometimes  it  is  extremely  dangerous  to 
take  a  light  to  discover  the  location  of  a  gas  leak,  and  some*times 
it  is  not,  depending  upon  various  circui4stances';  among  others, 
upon  the  extent  of  the  leak,  the  size  of  the  enclosure  where  lo- 
cated, and  the  length  of  time  the  leak  has  existed.  The  plain- 
tiff's intestate,  a  boy  of  18,  took  a  candle,  with  the  statement 
that  he  had  seen  gas  men  take  a  candle  to  find  a  leak,  and  it  is 
a  fact,  that  they  do  so  upon  some  occasions.  The  whole  ease  as 
to  the  contributory  negligence  of  plaintiff's  intestate  should  be 
submitted  to  the  proper  judges  of  fact."  ^^^  Searching  for 
leaking  gas  with  a  lighted  taper,  by  the  house  owner  who  dis- 
covers the  escape  of  gas  after  a  plumber  employed  to  put  in  gas 
fixtures  has  left,  is  not  contributory  negligence  per  se,  but 
whether  or  not  there  is  such  negligence  is  a  question  for  the 
jury."^     If  the  gas  is  escaping  in  large  quantities,  the  court 

173  Consolidated  Gas  Co.  v.  Crock-  i76  Scheemer  \.  Gaslight  Co.,  su- 
er,  82  Md.   113;   33  Atl.  Rep.   423;       pra. 

31  L,  R.  A.  785.  itt  Plouk   v.   Jessop,    178   Pa.    St. 

174  Scheemer  v.  Gaslight  Co.,  147  71;  27  Pittsb.  L.  J.  (N.  S.)  162; 
N.  Y.  529;  42  N.  E.  Rep.  202;  30  39  W.  K  C.  156;  35  Atl.  Rep,  851. 
L.  R.  A.  653;  Pine  Bluff,  etc.,  Co.  In  this  case  the  plaintiff  noticed 
V.  Schneider,  supra;  German  Amer-  leaking  gas,  but  the  plumber  as- 
ican  Ins.  Co.  v.  Standard  Gaslight  sured  him  that  "  everything  is 
Co.,  67  N.  Y.  App.  Div.  539;  73  N.  *  right";  and  after  he  had  left,  the 
Y.  Supp.  973.  plaintiff,    still    noticing    it,    took    a 

175  Bartlett  v.  Boston  Gaslight  lighted  candle  and  searched  for  it, 
Co.,   122  Mass.  209.  as  he  had  seen  the  plumber   do   it. 


LEAKS    AXD    EXPLOSIONS.  747 

may  possibly  say  that  it  was  contributory  negligence  to  search 
for  the  leak  with  a  lighted  taper.^'*  If  the  owner  of  the  prem- 
ises employ  a  plumber,  the  act  of  the  plumber  in  entering  a 
cellar  with  a  lighted  candle  to  locate  a  leak  does  not  prevent 
such  owner  recovering  damages  occasioned  by  an  explosion.^''' 
Where  an  inspector  of  water  meters  Avent  to  a  shed  to  examine 
a  water  meter  therein  on  the  gaslight  company's  premises,  and 
was  assured  by  the  company's  officers,  who  were  present,  that 
there  was  no  danger,  although  he  detected  gas  that  had  escaped, 
and  demonstrated  the  fact  by  lighting  matches  themselves;  it 
was  held  that  he  was  not  precluded  from  recovering  damages  on 
the  ground  of  contributor)'  negligence,  although  he  apprehended 
danger  when  making  the  examination.  The  act  of  the  officers 
of  the  gas  company  had  lulled  his  suspicions ;  and  he  had  a 
right  to  rely  upon  their  statements.^^"  So  where  a  laborer  was 
ordered  by  his  superior  to  enter  a  still  and  repair  it,  and  was 
killed  by  an  explosion  of  gas  which  had  entered  for  lack  of  a 
stop-cock,  and  which  was  ignited  by  a  lighted  candle  he  was 
carrying,  it  was  held  that  the  company  was  liable,  although  it 
was  almost  absolutely  certain  that  gas  from  the  other  stills 
nearby  in  use  would  turn  back  into  the  empty  still,  in  the  ab- 
sence of  a  stop-cock.  It  was  said  that  he  did  not  assume  the 
risk ;  for  he  had  a  right  to  rely  upon  the  duty  of  the  master  to 
furnish  him  a  reasonably  safe  place  within  which  to  work.^*^ 
But  to  take  a  lighted  candle  to  a  place  where  it  is  known  that 
gas  in  a  considerable  quantity  is  escaping,  is  such  an  act  of 
negligence  as  will  prevent  a  recovery  for  damages  occasioned 
by  the  gas  exploding  by  reason  of  its  coming  in  contact  with 
the  light.^'^^  In  commenting  upon  the  last  two  cases  cited,  the 
Supreme  Court  of  Maryland  pointed  out  the  distinction  be- 
tween them  and  those  cases  where  it  was  held  not  to  be  eon- 

1  "8  Pine  Bluff,  etc..  Co.  v.  Schnei-  iso  Washington     Gaslight     Co.    v. 

der,  supra.  Eckoff.  7  App.  Cas.  D.  C.  372. 

I'^^o  Scheraierhorn  v.   Metropolitan  isi  Nichols  v.  Brush,  etc.,  Co.,  53 

Gaslight  Co.,  5  Daly  144;  Parry  v.  Hun  137;  6  N.  Y.  Supp.  601. 

Smith,  L.  R.  4  C.  P.  Div.  32.5;   33  i82  0il  City  Gas  Co.  v.  Robinson, 

Gas  J.  899.  99  Pa.  St.  1;  13  Rep.  253;  Lanigan 

V.  Gaslight  Co.,   71   N.  Y.   29. 


748  OIL    AND    GAS. 

tributory  negligence  to  use  a  light  in  searching  for  gas:  "  In 
these  cases  where  the  explosion  instantly  followed  upon  a  light 
being  brought  in  contact  with  the  gas,  and  there  could  be  no 
possible  dispute  that  the  bringing  of  the  light  in  contact  with 
the  gas  caused  the  explosion;  but  when  there  is  not  such  a 
connection  between  the  act  of  entering  the  house  with  a  lighted 
lamp  and  the  explosion  of  gas  as  to  establish  with  a  certainty 
and  to  the  exclusion  of  any  other  reasonable  hypothesis,  the 
relation  of  cause  and  effect,  the  question  as  to  what  caused  the 
explosion  is  for  the  jury  to  solve  under  proper  instructions  from 
the  court.  When,  therefore,  as  here,  more  than  ten  minutes 
intervened  between  the  time  the  lamp  was  taken  into  the  cellar 
and  the  time  the  subsequent  explosion  occurred,  and  wdien,  as 
here,  the  lamp  itself  was  uninjured,  it  would  be  impossible  for 
the  court  to  assume  that  the  lighted  lamp  caused  the  explosion, 
and  to  rule,  as  a  conclusion  of  law,  thaf^khe  plaintiff's  employees 
were  guilty  of  contributory  negligence  in  taking  the  lamp  into 
the  cellar ;  this  is  true  also  with  respect  to  the  lighting  of 
matches  to  ignite  the  gasoline  in  the  stove."  ^^^  Where  gas 
escaped  into  a  sewer  from  a  defect  in  a  pipe,  and  the  plaintiff, 
a  civil  engineer,  entered  the  sewer,  wdiereupon  an  explosion 
followed,  it  was  held  that  there  could  be  no  recovery,  the  court 
saying:  "  The  gas  company  was  responsible  for  what  might, 
in  the  nature  of  things,  occur  from  its  neglect,  and  its  re- 
sponsibility was  not  limited  by  what  its  officers  may  have 
thought  to  be  improbable  or  even  impossible.  The  gas  pipe 
and  sewer  Avere  in  the  immediate  vicinity  of  each  other.  In 
the-  former  was  a  defect,  and  from  it  the  gas,  not  merely  by 
absorption  or  by  gravity,  but  also  by  pressure,  found  its  way 
into  the  sewer.  This  certainly  resulted  from  the  defendant's 
negligence,  because  but  for  the  defective  pipe  there  could  have 
been  no  escape  of  gas.  But  the  plaintiff  was  also  bound  to  the 
exercise  of  a  reasonable  care  for  his  own  safety.  He  was  a 
civil  engineer,  and  may  be  presumed  to  have  had  some  knowl- 
edge of  the  dangerous  nature  ^f  illuminating  gas,  of  its  power 
to   penetrate   the  earth,   and   of  its   explosive   character  when 

183  Consolidated  Gas  Co.  v.    Crocker,  supra. 


LEAKS    AXD    EXPLOSIONS.  749 

mixed  in  certain  quantities  Avitli  common  air.  The  defendant 
was  bound  for  the  consequences  of  its  neglect,  though  these 
consequences  were  not  and  could  not  by  ordinary  prudence  have 
been  anticipated,  whilst  the  plaintiff  was  bound  only  to  a 
knowdedge  of  the  probable  consequences  of  the  fact  which  he 
was  cognizant,  and  to  that  ordinary  prudence  w^hich  the  conse- 
quences required."  ^^* 

§652.     Contributory  negligence  a  question  for  the  jury. 

Whether  or  not  the  plaintiff  has  been  guilty  of  such  negli- 
gence as  contributed  to  the  iujury  is  a  question  for  the  jury, 
under  the  instructions  of  the  court.^*^  Where  the  charge  was 
injury  to  the  plaintiff's  health  by  gas  escaping  into  the  house, 
it  was  held  to  be  a  question  for  the  jury  whether  remaining  in 
the  house  after  a  knowledge  that  gas  was  escaping  was  not  a 
manifest  lack  of  prudence.^^*'  x^nd  where  the  charge  was  that 
gas  escaped  into  the  barn  and  killed  plaintiff's  horse,  it  was 
held  a  question  for  the  jury  to  determine  Avhether  he  was  guilty 
of  contributory  negligence  in  leaving  the  horse  in  the  barn 
after  discovering  the  odor  of  gas,  the  odor  not  being  so  strong 
as   to  possibly  impress  upon  him  a  sense  of  actual   danger.^^^ 

184  Oil  City  Gas  Co.  v.  Robinson,  in    searching    for   the    place    of   the 

supra.     See  Sauvage  v.  English  Gas  escape     of     the     gas.     presented     a 

Co.  of  Paris,  4  Gas  J.  136  (a  French  lighted  candle  at  an  opening,  caus- 

case)  ;  Vallee  es  qualite  v.  New  City  ing  an   explosion,   it  was  held  that 

Gas    Co.,    7    Am.    Law.    Rev.    767 ;  the    negligence    was   not   the    negli- 

Brown   v.    New   York   Gaslight   Co.,  gence  of  the  owner.    Baltimore  Con- 

—  Anthon's  N.  P.  Cas.  3.51:  Parkin  solidated   Gas   Co.   v.   Getty    (Md.), 

V.   Wirksworth   Gas   Co.,   26   Gas  J.  .54  Atl.  Rep.  060. 

496.  1*5  Kibele  v.  Philadelphia,  105  Pa. 

Perhaps  if  the  gas  be  accidentally  St.  41;   Ottersbach  v.  Philadelphia, 

lighted    there    may    be    a    recovery.  161  Pa.  St.  Ill;   28  Atl.  Rep.  991: 

Bartlett  v.  Boston  Gaslight  Co..  122  Holly    v.     Boston    Gaslight    Co..    8 

Mass.    200.  Gray  123;   60  Am.  Dec,  233. 

It  is  not  negligence  for  the  owner  i^e  Holly  v.   Boston   Gaslight   Co., 

of  a  house  to  leave  a  house  vacant  8  Gray  123;   69  Am.  Dec.  233.     See 

for  nearlv  a  month  without  inspec-  Hunt    v.    Lowell    Gaslight    Co..     1 

tion.     Where  a  house  was  thus  left  Allen   343. 

vacant,  and  an  odor  of  gas  was  dis-  is?  Lee  v.  Troy,  etc..  Co..  OS  X.  Y. 

covered    in    and    about    it.    and    the  115. 
neighbors   called   a   policeman,    who. 


750  OIL    AND    GAS. 

To  defeat  the  plaintiff,  his  contributory  negligence  must  con- 
tribute materially  and  essentially  to  the  injury;  and  the  jurors 
are  the  judges  of  this  question.^'"*  The  conduct  of  the  parties 
may  be  shown,  in  order  that  the  jury  may  determine  whether  or 
not  the  plaintiff  neglected  to  use  ordinary  care  in  seeking  relief 
or  resorting  to  expedients  readily  available  for  his  own  pro- 
tection and  security. ^^^  Where  the  deceased  was  killed  by  in- 
haling gas,  but  the  evidence  showed  that  he  was  under  certain 
stress  of  duty,  it  was  held  to  be  a  question  for  the  jury  whether 
the  risk  run  did  not  seem  to  be  great,  and  if  there  had  been 
ventilation  would  not  have  been  great;  and  for  that  reason  he 
could  have  taken  the  risk  without  releasing  the  defendant  by 
his  contributory  negligence. ^^^  An  inspector  of  a  water  com- 
pany went  upon  the  premises  of  a  gas  company  to  examine  a 
gas  meter.  The  meter  was  in  a  shed,  and  the  officers  of  the 
gas  company  assured  him  that  there  wa%no  danger  in  taking 
a  lighted  candle  into  the  shed,  and  demonstrated  the  fact  by 
themselves  lighting  matches  first.  He  was  injured  by  an  ex- 
plosion of  gas  that  had  accumulated  in  the  shed.  It  was  held 
that  the  fact  the  inspector  had  apprehended  danger  w\as  not 
conclusive  evidence  of  contributory  negligence  on  his  part,  but 
the  question  was  one  for  the  jury.'^®^ 

§653.     Negligence  of  parent,  wife  or  servant. 

In  those  jurisdictions  where  the  negligence  of  the  father  oi 
mother  is  allowed  to  defeat  the  right  of  his  minor  child  to  re- 
cover damages  caused  by  the  inhaling  of  gas  or  its  explosion,  the 
child  must  show  not  only  that  it  was  free  from  contributory 

188  Oil  City  Fuel  Supply  Co.  v.  i9i  Washington  Gaslight  Co.  v. 
Boimdy.    122   Pa.    St.   449;    15   Atl.       Eckloff,  7  App.  D.  C.  372. 

Rep.    865 ;    Lanigan    v.    New    York  Where  a  city  caused  breaks  in  gas 

Gaslight  Co.,  71  N.  Y.  29.  pipes    in    digging    a    sewer,    it    was 

189  Holly  V.  Boston  Gaslight  Co.,  lield  that  the  owner  of  a  cellar,  in 
supra.  which    an   explosion   occurred   could 

190  Finnegan  v.  Fall  River  Gas  not  have  anticipated  that  the  es- 
Works  Co.,  159  Mass.  311;  34  N.  E.  Piping  gas  would  follow  an  old 
Rep.  523;  Citizens'  Gaslight,  etc.,  sewer  into  his  cellar.  Aurora  Gas- 
Co.  V.  O'Brien,  118  111.  174;  8  N.  light  Co.  v.  Bishop,  81  111.  App.  493. 
E.  Rep.  310. 


LEAKS    AND    EXPLOSIOXS.  751 

negligence,  but  also  its  father  or  mother ;  and  a  want  of  ordinary 
care  of  the  father  or  mother  will  defeat  its  cause  of  action/'-*^ 
But  it  has  been  held  that  negligence  on  the  part  of  the  parent 
which  partly  occasioned  the  accident  was  not  such  negligence 
as  would  defeat  its  cause  of  action;  and  that  negligence  which 
would  not  defeat  an  adult  was  not  such  as  would  defeat  a 
minor/^'*  Where  the  evidence  in  a  case  showed  that  the 
mother  and  her  infant  child,  who  was  the  plaintiff,  slept  together 
in  a  room  without  gas  fixtures,  and  in  the  morning  the  mother 
was  found  dead  and  the  child  insensible,  and  there  was  an  en- 
tire absence  of  evidence  to  show  that  either  the  mother  or  child 
knew  of  the  escape  of  gas,  or  was  conscious  of  its  presence,  in 
time  to  leave  or  take  precautions  against  or  prevent  its  effect 
by  opening  the  windows;  and  it  was  shown  that  the  mother 
was  a  sober  and  prudent  woman ;  and  that  on  the  day  before 
there  was  no  smell  of  gas  in  the  street,  it  was  held  that  the  evi- 
dence showed  due  care  on  the  part  of  the  child.'"*  The  negli- 
gence of  the  husband  or  his  servant  acting  under  his  directions 
will  bar  the  right  of  the  wife  to  recover.'"'  So  the  negligence 
of  the  plaintiff's  servant  will  bar  his  (the  plaintiff's)  right  to 
recover ;  as  where  he  went  with  a  lighted  candle  to  search  for 
escaping  gas.'"*'  So,  again,  the  negligence  of  the  deceased  will 
bar  his  representatives.'"'  But  where  the  deceased  was  a 
servant,  and  was  directed  to  go  to  the  place  by  the  use  of  a  ladder 
of  a  certain  length,  but  selected  one  much  shorter;  it  was  held 
that  he  was  bound  to  select  the  course  which  was  farthest 
from  danger,  and  if  there  was  any  difference  in  the  two  ways, 
it  was  a  question  for  the  jury  to  determine  if  he  deliberately 
chose  the  most  dangerous  one.'"'' 

192  Holly  V.  Boston  Gaslight  Co..  band  sent  a  servant  to  search  for 
8  Gray  123;  60  Am.  Dec.  233.  gas,  who  took  a  lighted  candle, 

193  Lannen  v.  Albany  Gaslight  iog  Pine  Bluff  Water  and  Light 
Co..  46  Barb.  264 ;  affirmed  44  N.  Y.  Co.  v.  Schneider,  62  Ark.  109 ;  34 
459.  S.  W.  Rep.  547;  33  L.  R.  A.  366. 

194  Smith  V.  Boston  Gaslight  Co.,  i97  Lehigh  Valley  Coal  Co.  v. 
129  Mass.   318.  Jones,  86  Pa.  St.  432. 

105  Vallee  es  qualite  v.  New  City  los  Citizens'  Gaslight,  etc..  Co.  v. 

Gas  Co.,  7  Am.  Law  Rev.  767.    Hus-       O'Brien.  118  111.  174;   8  N.  E.  Rep. 

310. 


752  OIJ.    AND    GAS. 

§654.     Contributory  neg-ligence   of  tenant  may  bar  landlord, — 
reversionary  interest. 

The  negligence  of  the  tenant  will  bar  the  landlord  recovering 
for  damages  to  his  property  caused  by  an  explosion.''-"'  Thus 
where  gas  escaped  from  a  street  main  into  a  house,  and  the  ten- 
ant going  in  search  of  the  escaping  gas  with  a  lighted  candle 
caused  an  explosion,  it  was  held  that  if  he  was  negligent,  thus 
causing  the  explosion,  the  landlord  could  not  recover  for  injuries 
to  his  house.  "  If  the  tenant,"  said  the  court,  "  upon  discovering 
the  presence  of  gas  in  a  large  quantity  in  the  house,  neglected 
to  give  notice  to  the  agents  or  servants  of  the  gas  company,  or 
take  reasonable  precautions  to  remove  or  exclude  the  gas,  and 
recklessly  brought  the  flame  of  a  candle  in  contact  Avitli  it,  thus 
bringing  about  injurious  effects  which  would  not  have  followed 
but  for  such  reckless  or  negligent  conduct  on  his  part,  the  gas 
company  ought  not  to  be  held  responsible  Ikr  those  results.  If 
the  intervening  misconduct  of  the  occupant  of  the  building 
produced  the  explosion,  which  was  the  immediate  cause  of  the 
injury  to  the  building,  the  plaintiff  cannot  charge  the  legal  re- 
sponsibility for  that  result  upon  the  original  negligent  act  or 
omission  of  the  gas  company."  ■"**  But  if  the  tenant  was  not 
guilty  of  any  negligence,  then,  of  course,  the  landlord  could 
recover  damages  from  the  gas  company.  In  such  an  event  the 
landlord  has  the  burden  to  show  that  the  injury  was  caused  by 
the  gas  company's  negligence ;  that  the  tenant's  negligence  did 
not  materially  contribute  to  the  injury,  in  addition  to  showing 
that  his  own  act  did  not  contribute  to  it;  and  that  the  tenant, 
if  he  discovered  the  presence  of  gas,  took  reasonable  means  and 
precautions  to  remove  and  exclude  it,  or,  if  he  had  no  knowledge 
of  what  precautions  should  have  been  taken,  he  made  proper  ef- 
forts to  notify  the  gas  company.  If  the  tenant  accidentally 
ignited  the  gas,  or  if  he  reasonably  supposed  the  gas  proceeded 
from  another  source,  as  from  a  furnace,  and  under  that  impres- 
sion went  in  search  of  it  with  a  light,  thus  causing  an  explosion, 

199  Creel   v.   Charleston,   etc.,   Gas  200  Bartlett    v.     Boston     Gaslight 

Co.,  51   W.  Va.   129;   41   S.  E.  Rep.       Co..  117  Mass.  533;   19  A.  Rep.  421, 
174. 


LEAKS    AND    EXPLOSIONS.  753 

the  landlord  may  recover  for  the  damages  occasioned  his  house 
by  the  explosion.'**^ 

§655.     Negligence  of  contractors. —  Lessee. 

A  gas  company  cannot  escape  liability  by  simply  placing  the 
management  of  its  gas  works  in  charge  of  a  person  called  a 
"  lessee."  "**'  But  there  is  no  doubt  that  the  company  would 
not  be  liable  if  it  had  made  an  actual  lease  of  its  plant,  and 
surrendered  all  control  over  it.  Where  a  contractor  had  not 
yet  turned  over  to  the  gas  company  the  plant,  including  the 
mains  in  the  street,  he  was  constructing  for  it ;  and  gas  escaped 
because  the  mains  were  not  securely  connected  with  each  other, 
the  gas  company  was  held  liable.  As  to  third  persons  the  con- 
tractor was  regarded  as  the  agent  of  the  gas  company,  on  the 
ground  that  the  right  to  lay  and  put  down  gas  mains  in  the 
street  Avas  a  permission  from  the  municipality  and  the  exercise 
of  a  right  under  its  charter ;  and  therefore  the  gas  company 
could  not  escape  liability  of  letting  the  contract  to  an  independ- 
ent contractor.  [n  passing  on  the  case  the  court  used  the  fol- 
lowing language :  "  Even  though  the  person  who  causes  the 
injury  is  a  contractor,  he  will  be  regarded  as  the  servant  or 
agent  of  the  corporation  for  which  he  is  doing  the  work,  if  he 
is  exercising  some  chartered  privilege  or  powder  of  such  corpora- 
tion w^ith  its  assent  which  he  could  not  have  exercised  inde- 
pendently of  the  charter  of  such  corporation.  In  other  words, 
a  company  seeking  and  accepting  a  special  charter  must  take 
the  responsibility  of  seeing  that  no  wrong  is  done  through  its 
charter  poAvers  of  persons  to  whom  it  has  permitted  their  exer- 

201  Bartlett    v.     Boston     Gaslight  source  of  the  escapinof  gas,  causing 

Co.,    122   Mass.    209.      See    Sherman  an  explosion  by  which  he  is  injured, 

V.    Fall    River    Iron    Works    Co.,    2  has  contributed  to  his  injury  to  the 

Allen   524.  extent  that  he  is  barred  from  recov- 

It  cannot  be  said  as  a  matter  of  ering    damages.      People's    Gaslight 

law  that  a  tenant  of  a  flat,  who  per-  and   Coke   Co.   v.    Amphlett,   9.3   111. 

ceives  the  odor  of  escaping  gas,  en-  App.  194. 

ters  an  adjoining  vacant  apartment  202  Consolidated   Coal   Co.  v.   Sen- 

without  permission,  lights  a   match  inger.  79  111.  App.  4-^6-,  affirmed  179 

to     aid     him     in     ascertaining     the  III.  370. 


754  OIL    AND    GAS. 

cise."  ^°^  But  a  result  diametrically  opposite  to  this  decision 
was  reached  in  another  State ;  and  in  passing  on  the  case  the 
conrt  nsed  the  following  language :  "  It  is  to  be  regretted 
that  corporations  invested  with  the  right  of  appropriating  pri- 
vate property  and  entering  the  public  highways  for  the  purpose 
of  laying  their  pipes  in  which  to  transport  and  distribute  one  of 
the  most  dangerous  natural  agencies  in  existence  should  be 
permitted  to  relieve  themselves  from  the  duties  and  responsibili- 
ties of  business  by  letting  part  of  the  work  requiring  the  highest 
degree  of  care  to  an  independent  contractor,  but  the  law  is  so 
settled."  ^''*  Where  the  plaintiff  was  a  butler  in  the  employ 
of  a  club,  and  defendant  had  been  employed  by  the  club  to 
make  alterations  in  the  club  house,  and  he  had  contracted  with 
a  gasfitter  to  do  the  gas  fittings,  which  he  did ;  it  was  held 
that  if  the  gasfitter  laid  down  any  pipe  not  specified  in  his  con- 
tract with  the  defendant,  and  by  reason  of  U  defect  in  such  pipe 
the  gas  escaped,  the  defendant  was  not  liable ;  and  it  was  also 
held  that  even  if  the  pipe  was  included  in  the  contract,  and  the 
gas  had  been  turned  on  by  the  plaintiff's  own  order  while  the 
defendant's  men  were  in  the  house,  the  house  being  unoccupied 
and  not  completed,  that  the  plaintiff  could  not  recover.""^ 

203  Economic  Fuel  Gas  Co.  v.  My-  L.  T.  252;  47  W.  R.  658;  15  T.  L. 
ers,  168  111.  139;  49  N.  E.  Rep.  66;  R.  483;  [1899]  2  Q.  B.  392. 
affirming  64  111.  App.  270;  1  Chic.  204  Chartiers  Valley  Gas  Co.  v. 
L.  J.  Wkly.  276.  A  similar  decision  Lynch,  118  Pa.  St.  362;  12  Atl.  Rep. 
is  Hardaker  v.  Idle  Dist.  Council  435;  Chartiers  Valley  Gas  Co.  v. 
[1896],  1  Q.  3.  335;  65  L.  J.  Q.  B.  Waters.  123  Pa.  St.  220;  16  Atl. 
(N.  S.)  363;  74  Law.  T.  Rep.  69;  Rep.  423;  25  Am.  and  Eng.  Corp. 
44  W.  R.  323;  60  J.  P.  196.  For  Cas.  400.  See  Phoenix,  etc.,  Co.  v. 
other  cases  to  same  effect,  see  Gray  Dethick,  14  Gas  J.  536.  . 
V.  Pullen,  5  B.  and  S.  970;  34  L.  J.  A  gas  company  by  permitting  a 
Q.  B.  265;  11  L.  T.  569;  13  consumer  to  employ  a  person  to  put 
W.  Iv.  257;  Woodman  v.  Metropol-  in  a  gas  pipe  and  turn  on  the  gas, 
itan.  etc.,  Co.,  149  Mass.  335;  21  does  not  make  such  person  its  agent, 
N.  E.  Rep.  482;  4  L.  R.  A.  213;  so  as  to  render  it  liable  for  an  ex- 
Denning  V.  Terminal  Ry.,  49  X.  Y.  plosion  caused  by  his  negligence. 
App.  Div.  493;  63  N.  Y.  Supp.  615;  Jlint  v.  Gloucester  Gaslight  Co.,  3 
Vnsbeck    v.    Kellog    (Minn.),    80   N.  Allen   343. 

W.  Rep.  957 ;  Holliday  V.  Nat.  Tele-  205  Rapson   v.    Cnbitt.   9   Mess.   & 

phone  Co.,  68  L.  J.  Q.  B.   1016;   81  Wels.,  710;  C.  and  M.  64. 


LEAKS    AND    EXPLOSIONS.  755 

§656.     Right  of  action  over. 

The  fact  that  a  gas  company  has  been  compelled  to  pay  dam- 
ages because  of  its  negligence  will  not  always  bar  its  right  to 
recover  from  the  person  guilty  of  the  original  act  that  led  on  to 
the  negligent  conduct  of  the  company.  Thus,  where  it  appeared 
from  the  evidence  that  an  explosion  Avas  occasioned  by  gas  leak- 
ing from  a  broken  pipe  of  the  plaintiff  gas  company,  and  that 
judgments  had  been  recovered  against  it  by  the  parties  injured, 
from  which  appeals  had  been  taken  which  were  subsequently 
compromised ;  it  was  held  that  the  gas  company  could  recover 
from  the  traction  company  the  damages  it  had  sustained  by 
reason  of  the  negligence  of  the  latter  in  excavating  the  street 
and  causing  the  breaking  of  its  pii^e,  in  an  action  of  trespass 
brought  to  recover  the  money  paid  by  it  for  the  injuries  caused 
by  the  negligence  of  such  traction  company.'"*' 

§657.     Liability  of  gasfitter. 

If  a  gasfitter,  in  fitting  up  a  house,  put  in  defective  pipes; 
or  if  in  repairing  those  already  in,  he  repairs  them  defectively, 
and  thereby  gas  escape  and  injure  the  inmates,  or  explodes, 
injuring  the  house,  he  will  be  liable  for  the  damages  sustained, 
the  same  as  where  a  gas  company  negligently  permits  gas  to 
escape.""^ 

§658.     Evidence  to  show  due  care  on  gas  company's  part. 

The  defendant  gas  company  may  always  show  that  it  had 
used  due  care  to  prevent  leaks  or  explosions,  and  for  that  pur- 

The  action  for  damages  incurred  Atl.  Rep.  934.     See  District  of  Co- 

from   the    operation    of    a    plant    is  lumbia  v.  Washington  Gaslight  Co., 

properly  brought  against  the  person  9  Mackey  39;    161   U.   S.  316. 
operating  it,  although   another  per-  207  Parry  v.  Smith,  L.  R.  4  C.  P. 

son   defectively   erected   such   plant.  Div.  325;  33  Gas  J.  899;  Hemstead 

Hyde    Park,     etc.,     Co.    v.     Porter,  v.  Phoenix  Gaslight,  etc.,  Co.,   3  H. 

167    111.   276;    47   N.   E.   Rep.   206;  and  C,  745;   11  Jur.  N.  S.  626;    13 

affirming  64  111.   App.  152.  W.  R.  662;   34  L.  J.  C.  P.  108;   14 

.  206  Philadelphia     Co.     v.    Central  Gas  J.  399. 
Traction   Co.,    165   Pa.   St.   456;    30 


756  OIL    AND    GAS. 

pose  it  may  show  that  it  had  used  proper  material  in  the  con- 
struction of  its  plant ;  that  it  had  used  proper  pipes  or  mains, 
where  the  charge  is  that  they  had  become  weak  and  rotten  from 
long  use  or  from  the  effect  of  the  elements  upon  them,"''^  And 
where  the  charge  is  that  it  negligently  permitted  the  gas  to 
escape  after  it  had  notice  that  it  was  escaping,  the  company,  to 
show  due  diligence  on  its  part,  may  show  its  system  of  com- 
plaints for  leaks,  and  what  was  its  course  of  business  with 
regard  to  such  complaints,  for  the  purpose  of  showing  that  due 
preparation  for  accidents  had  been  made  by  it,  but  not  for  the 
purpose  of  showing  that  it  had  exerted  the  same  degree  of  dili- 
gence it  did  in  the  case  as  it  had  done  in  other  cases. "^^  In  one 
case  it  was  held  that  the  original  entries  in  the  gas  company's 
books  of  leaks  and  repairs  along  the  line  of  pipe  for  five  months 
prior  to  the  explosion  where  it  was  charged  the  leak  occurred 
were  competent,  as  tending  to  show  thatrthe  company  had  pro- 
vided an  adequate  system  for  the  protection  of  the  public  from 
the  unusual  danger  of  escaping  gas."^''  Copies  of  notices  sent 
by  the  gas  company  to  consumers  calling  attention  to  the  lia- 
bility of  leaks  to  occur  from  the  excavations  being  made  in  the 
streets  by  the  city  or  various  construction  companies  within 
a  year  or  so  prior  to  the  accident  complained  of,  are  ad- 
missible on  the  question  of  due  care  on  the  part  of  the  gas  com- 
pany. "^^ 

208  Consumers'   Gas   Trust   Co.   v.  Dechert   v.   Municipal,   etc.,   Co.,   57 

Corbaley,   14   Ind.   App.   549;   43  N.  N.  Y.  Supp.  225. 

E.  Rep.  2.37.  211  Powers  v.  Boston  Gaslight  Co., 

200  Holly  M.   Boston  Gaslight  Co.,  158  Mass.  257;   33  N.  E.  Rep.  523. 

8  Gray  123;  69  Am.  Dec.  233.  Where    the    gas    escaped    from    a 

210  Koplan  V.  Boston  Gaslight  Co.,  street  main,  passed  under  the  frozen 

177  Mass.    15;    58   N.   E.  Rep.   183;  crust  of  the   surface  of  the  ground 

Powers  V.  Boston  Gaslight  Co.,  158  into  the  plaintiff's  cellar,  a  witness. 

Mass.  257;  33  N.  E.  Rep.  523.  experienced        in       digging       holes 

The  rules  of  boards  of  fire  under-  through    the    frozen    earth,   was    al- 

writers  and  other  electric  light  com-  lowed  to  testify  how  mTich   labor  it 

panics,    prescribing    the   manner    of  would  take  to  dig  such  holes  as  had 

wiring    buildings,    are    inadmissible  *  been     dug     by     the     gas     company 

evidence    on    an    issue    whether    an  through   the  frozen   earth  in  search 

electric  light  company  had  defective-  for    the    leaks,    in    order    to    show 

ly  insulated  its  wires  in  a  building.  whether  it  had  used  reasonable  dili- 


LEAKS    AXD    EXPLOSIOiSrS.  757 

§659.     Expert  evidence  to  show    effect  of  electrolysis. 

Where  the  question  arises  that  the  defects  in  the  gas  mains  or 
pipes  were  caused  by  electrolysis,  experts  may  be  called  to  show 
what  effect  electricity  has  upon  gas  mains  or  pipes,  and  its 
tendency  to  destroy  the  iron  fibre  and  render  them  unsafe,  and 
to  give  their  opinions  that  the  pipes  were  affected  by  electrolysis, 
and  the  reasons  for  their  opinions."^" 

§660.     Evidence  in  cases  of  inhalation  of  gas. 

In  an  action  to  recover  damages  occasioned  by  the  inhalation 
of  gas,  aside  from  the  question  of  an  expert  evidence,  it  may 
be  shown  that  the  plaintiff  and  other  members  of  his  family 
living  with  him  had  been  in  good  health  until  the  influx  of 
gas ;  and  that  after  that  they  all  became  ill,  or  even  some  of 
them  died."^^  l^o  particulars,  however,  of  the  sickness  of  the 
other  members  of  the  family  are  admissible  to  show  the 
nature  of  the  gas  and  its  effects  upon  such  other  mem- 
bers, who  inhaled  it  at  the  same  time  with  the  plaintiff.^^*  Nor 
is  it  admissible  to  show  that  wherever  the  gas  entered  a  house 
in  the  neighborhood,  Avhere  their  drains  were  connected  with 
the  sewers  through  which  the  gas  escaped  into  the  plaintiff's 
house,  sickness  followed. "^^  Xor  can  it  be  sliown  that  gas  es- 
caped into  a  block  of  houses  directly  opposite  ])laintiff's  house, 
in  order  to  charge  the  defendant  with  notice  of  the  leak,  before 
it  is  shown  it  came  into  the  plaintiff's."^''  Where  the  plaintiff's 
theory  is  that  the  gas  escaped  into  a  sewer,  and  thence  through 
the  house  drain  into  his  house,  it  may  be  shown  that  it  entered 
other  houses  similarly  connected  with  the  same  sewer,  or  with 
a  sewer   entering  into   the  sewer   into   which   it  is   claimed   it 

gence    in    finding    and    stopping   the  Co.,    44    N.    Y.    App.    Div.    158;    GO 

leak.     Emerson  v.   Lowell   Gaslight  X.  Y.  Supp.  628. 

Co.,  3  Allen  410.  ^i*  Hunt    v.    Lowell    Gaslight   Co., 

2i2Koplan  V.  Boston  Gaslight  Co.,  8  Allen  109;   85  Am.  Dec.  097. 
177  Mass.    15;    58   N.   E.   Rep.   183.  215  Hunt  v.    Lowell   Gaslight   Co.. 

213  Hunt  V.   Lowell   Gaslight   Co.,  3  Allen  410. 
1   Allen   343;   Hunt  v.  Lowell   Gas-  210  Emerson    v.    Lowell     Gaslight 

light  Co.,  8  Allen  169;  85  Am.  Dec.  Co.,  6  Allen  146;  83  Am.  Dec.  021. 

697.     See  Beyer  v.  Consolidated  Gas  But   see   Apfelbach   v.    Consolidated 

Gas  Co.    (Pa.),  54  Atl.  Rep.  359. 


758  OIL    AND    GAS, 

escaped.^^^  The  gas  company  may  not  introduce  evidence  to 
show  that  plaintiff's  sickness  and  his  family's  was  in  fact 
typhoid  fever,  that  earlier  occupants  cf  the  house  had  been 
afflicted  with  much  illness  of  the  same  character,  that  several 
families  had  been  compelled  to  recover  from  it  on  that  account, 
and  that  its  location  was  low,  upon  made  land,  and  it  was 
generally  regarded  to  be  unhealthy. "^^  It  may  be,  shown  that 
gases  were  set  in  motion  by  the  illuminating  or  natural  gas 
escaping  into  the  server  where  they  were,  and  that  they  were 
pushed  into  the  plaintiff's  house,  causing  illness  of  which  com- 
plaint is  made."^''  If  the  charge  be  that  the  company's  escap- 
ing gas  caused  the  death  of  the  plaintiff's  child,  the  plaintiff 
must  show  not  only  the  negligence  of  the  child,  the  fact  that 
the  death  was  due  to  it,  and  that  neither  he  nor  the  child  con- 
tributed to  it,  where  the  plaintiff  is  required  to  show  his  free- 
dom from  contributory  negligence."""  In^the  case  just  cited, 
the  child  was  found  dead  in  a  cellar,  the  gas  escaping  from  a 
leak  in  a  joint  of  the  gas  pipe,  which  had  never  leaked  before 
and  around  which  the  plaintiff  had  just  caused  a  load  of  coal 
to  be  thrown ;  but  the  physician  could  not  say  that  its  death 
was  due  to  the  inhalation  of  gas ;  and  it  was  held  that  an  in- 
struction to  find  for  the  gas  company  was  proper.""^     Evidence 

217  Butcher  v.  Providence'  Gas  Co.,       Apfelbach   v.   Consolidated   Gas   Co. 
12  R.  I.  149;  34  Am.  Rep.  626;    18        (Pa.),  54  Atl.  Rep.  359. 

Alb.   L.   Jr.   372.     Ottawa   Gaslight  221  it    may    be    shown    that    the 

and    Coke    Co.    v.    Graham,    35  111.       plaintiff   for   a   long   time  —  as,   for 

346.  two  years  —  made  no  claim  for  dam- 

218  Hunt  V.   Lowell   Gaslight  Co.,       ages.     Emerson   v.   Lowell,   3   Allen 
1    Allen    343.  410. 

219  Hunt  V.   Lowell   Gaslight  Co.,           The  master   is   not   liable   for   in- 
8  Allen  169;  85  Am.  Dec.  697.  juries  to  his  servant  from  exposure 

As  to  what  is  sufficient  to   show  to  poisonous  gases  generated  by  coal 

due  care  on  the  part  of  the  plaintiff  fires  in  his  shop,  whose  effect  is  en- 

who    has    breathed    the    gas    while  hanced  by  the  admission  of  extreme 

asleep,  see  Smith  v.  Boston  Gaslight  cold    air,    where   he    is    ignorant    of 

Co.,  129  Mass.  318,  cited  elsewhere,  the  unwholesome  and  dangerous  con- 

and  Shogland  v.   St.   Paul  Gaslight  dition    of   the    building,    and    could 

Co.   (Minn.),  93  N.  W.  Rep.  668.  nt)t,  by  the  exercise  of  ordinary  care, 

220  State  v.  Consolidated  Gas  Co.,  have   known   of   the   danger.     Mait- 
85  Md.  637;   37  Atl.  Rep.  263.     See  land  v.  C.  L.  &   R.  R.   Co.,   3  Ohio 

Leg.  News.  289. 


LEAKS    AND    EXPLOSIONS.  759 

is  admissible,  in  case  of  an  injury  from  inhaling  gas,  to  show 
that  when  artificial  respiration  was  resorted  to  the  odor  of  gas 
coming  from  the  liings  was  perceptible. ""' 

§661.     Expert  evidence  on  inhalation  of  g^as. 

Where  the  action  is  to  recover  damages  cansed  to  the  plain- 
tiff or  his  intestate  by  the  inhaling  of  gas  that  had  been  negli- 
gently released,  or  permitted  to  escape,  testimony  of  physicians 
to  show  the  effect  upon  the  health  or  system  of  the  plaintiff  or 
the  intestate  is  admissible ;  and  they  may  testify  whether  or 
not  the  breathing  of  the  gas  produced  the  particular  sickness  it 
is  claimed  to  have  done.^^^  But  a  physician  who  had  been  in 
practice  for  several  years,  without  any  experience  concerning 
the  effects  upon  the  health  by  breathing  illuminating  gas,  was 
held  not  to  be  qualified  to  testify  in  relation  thereto  as  an  ex- 
pert, and  experience  gained  from  attending  upon  other  persons 
made  ill  by  breathing  gas  from  the  same  leak  was  not  sufficient 
to  qualify  him  to  testify,  nor  was  he  permitted  to  testify  that 
the  plaintiff  had  told  him  that  gas  entered  his  house  a  year  or 

The  owner  of  a  blast   furnace   is  External   injury   in   an   action   to 

not  liable  to  his  servant  for  injuries  recover   damages   occasioned    to   the 

received    by    the    inhalation    of   gas  person  by  an  explosion  of  gas  need 

not   sufficient   in   quantity  to   affect  not  be  shown.    Fellvvood  v.  Pearson, 

an   ordinary  individual. —  as,  where  23  Gas  J.  248.     The  fact  of  actual 

his  lungs  are  over-sensitive   from  a  injuiy  is  a  question  for  the  jury, 
previous  illness,  if  snch  master  had  Damages   for   a    severe    shock   oc- 

no    reason   to   suppose    he   was   not  casioned    by    an    explosion    may    be 

sufficiently  strong  to  endure  the  gas  recovered.     Fellwood  v.  Pearson,  su- 

without   risk.      Parlin,    etc.,    Co.   v.  ^^ro. 
Finfrouck,  65  111.  App.   174.  223  Hunt  v,   Lowell   Gaslight   Co., 

For    instance   where    the   conduct  8  Allen  169;  85  Am.  Dec.  697. 
of   the    superintendent    in    quieting  EK'idence    that    the    plaintiff    did 

the     fears     of     the     servants     were  not    claim    any    damages    for    more 

enough    to    prevent    the    defense    of  than  two   years  after  the  injury  is 

contributoiy    negligence,    see    Wag-  admissible;    but    evidence    that   the 

ner  v.   H.   W.   Jayne  Chemical   Co.,  plaintiff,    while    sick    in    bed    from 

147  Pa.  St.  475;   29  W.  N.  C.  490;  the   effects   of   the   gas.   did   not  as- 

23  Atl.  Rep.  772.  cribe  it  to  the  effects  of  the  gas  or 

222  Menneilley  v.  Employers',  etc.,  say  anything  as  to  the  cause  of  it, 

Corp.,  148  N.  Y.  596;  43  N.  E.  Rep.  is  not  admissible.     Emerson  v.  Lo- 

54;    31    L.  R.  A.  686.  well  Gaslight  Co.,  3  Allen  410. 


760  OIL    AND    GAS. 

SO  before,  and  that  the  inhalation  of  it  made  him  sick.'-*  And 
in  this  same  case  it  was  held  that  the  evidence  of  an  agent  of 
the  company  in  charge  of  its  gas  works,  who  did  not  know  or 
believe  gas  was  noxions  to  health,  was  not  admissible  for  the 
pnrpose  of  affecting  the  question  of  care  and  diligence  which 
it  was  the  duty  of  the  company  to  exercise,  but  it  was  held  tliat 
he  was  competent  to  give  his  opinion  upon  the  general  question 
as  to  the  alleged  deleterious  effect  of  gas  upon  the  health  of 
persons  exposed  to  it.""^  The  plaintiff  may,  however,  show  all 
the  facts  and  circumstances  attending  his  sielcness,  to  which 
may  be  added  the  opinions  of  skilled  and  experienced  persons 
as  to  the  cause  which  produced  it ;  and  the  opinion  may  be 
taken  as  to  whether  or  not  it  might  have  been  or  probably  was 
produced  by  the  gas  to  which  plaintiff  was  exposed  in  his 
house.^"®  So  expert  evidence  is  admissible  to  show  that  hard 
coal  burned  in  a  generator  would  produc^  carbonic  acid  gas 
and  carbonic  oxide,  that  both  are  poisonous,  and  the  former, 
because  it  is  higher  than  air,  would  ascend  to  the  ceiling,  in 
order  to  show  the  presence  of  gas  at  the  place  where  the  victim 
fell ;  but  he  may  not  be  asked  if  gas  was  present  at  such  place, 
being  only  permitted  to  say  that  if  such  gas  escaped  it  would 
have  a  tendency  to  go  to  the  place  where  the  deceased  fell.^"^ 
And  a  witness  having  no  practical  experience,  all  his  knowl- 
edge having  been  acquired  from  reading  standard  authorities 
and  study,  may  testify  as  to  the  effect  of  gases  from  hard  coal 
on  the  human  being. -'^ 

§662.     Proof  of  effect  upon  growing  vegetation  or  grass. 

In  order  to  determine  whether  or  not  gas  escaped  to  the  in- 
jury of  the  plaintiff,  it  may  not  only  be  shown  that  the  odor 

224  Emerson    v.    Lowell     Gaslight  O'Brien,   15   111.  App.  400;   affirmed 

Co.,  6  Allen   146;   83  Am.  Dec.  621.  118    111.    174. 

225 /6id.   Emerson  v.   Lowell   Gas-  22s  citizens'  Gaslight,  etc.,  Co.  v. 

light  Co.,  .3  Allen  410.  O'Brien,  15  Bradw.  400. 

226  Emmerson  v.  Lowell   Gaslight  Such  a  witness  may  be  asked  what 
Co.,  supra.  practical     experience    he     has     had 

227  Citizens'  Gaslight,  etc.,  Co.  v.  with  such  gases.    Citizens'  Gaslight, 


LEAKS    AXD    EXPLOSIONS.  T61 

of  gas  was  perceptible  ''°  at  the  point  in  controversy,  but  its 
extent  or  amount,''^"  the  discoloration  of  the  gTound  or  earth 
caused  by  it,"^^  and  also  the  effect  wpon  vegetation  or  grass ; 
and  in  order  to  show  the  effect,  the  state  of  the  vegetation  before 
the  leak  occurred,  during  the  time  the  gas  was  flowing,  and 
after  it  ceased  to  flow  may  be  shown. '^"  Thus  proof  of  the 
decay  of  vegetation,  its  death,  together  with  the  leakage  of  a 
large  amount  of  gas  after  the  gas  main  was  laid  and  until  it 
was  recalked,  the  healthy  growth  of  the  vegetation  after  such 
recalking,  will  support  the  conclusion  of  the  jury  that  the 
escape  of  the  gas  was  the  cause  of  the  injury  to  the  vegetation. "^^ 

§663.     What  acts  of  negligence  a  question  for  the  jury. 

It  is  impossible  to  lay  down  any  general  rule  with  reference 
to  what  acts  or  admissions  shall  be  determined  by  the  court 
and  what  by  the  jury  as  instances  fixing  a  liability  upon  those 
guilty  of  them.  In  instances  of  leaks  and  explosions  the  gen- 
eral rules  of  negligence  apply,  the  only  confusion  being  that 
which  arises  out  of  their  application  to  particular  instances. 
Illustrations  have  already  been  given ;  and  further  illustrations 
must  necessarily  be  little  more  than  a  digest  of  the  cases. 
^Vllere  premises  had  been  vacant  several  weeks,  of  which  fact 
the  gas  company  had  due  notice,  and  had  been  requested  to 
cut  off  the  gas  supply ;  and  on  the  evening  of  the  explosion  they 
were  let  to  some  negroes ;  and  it  appeared  that  the  company 
had  cut  off  the  gas  by  the  meter  cock,  but  not  by  the  service 
cock,  which  was  under  the  curbstone;  that  some  one  had  tam- 

etc,  Co.  V.  O'Brien,   118  111.  174;   8  232  Siebrecht   v.    East   River    Gas 

N.  E.  Rep.  310.  Co.,    21    N.    Y.    App.    Div.    110;    47 

229  Koplan  V.  Boston  Gaslight  Co.,  N.  Y.  Supp.  262 ;  Butcher  v.  Provi- 
177  Mass.   15;    58  N.   E.   Rep.   183.  dence  Gas  Co.,  12  R.  I.  149;  34  Am 

230  Emerson    v.    Lowell    Gaslight  Rep.  626;    18  Alb.  L.  Jr.  372 

Co.,   3  Allen  410.  -^^  Evans    v.    Keystone    Gas    Co , 

231  Consumers'  Gas  Trust  Co.  v.  148  X.  Y.  112;  42  N.  E.  Rep.  513, 
Perrego,  144  Ind.  350;  43  X.  E.  28  Chic.  Leg.  Xews.  160;  30  L  R. 
Rep.  306;  32  L.  R.  A.  146;  Bloom-  A.  651;  51  Am.  St.  Rep.  681;  affirm* 
field,  etc..  Co.  v.  Calkins,  1  T.  and  C.  ing  21  X.  Y.  Supp.  191. 

(N.  Y.)    549. 


Y62  OIL    AND    GAS. 

pered  with  the  meter  cock  and  let  the  gas  on,  cutting  it  off 
again ;  and  if  the  gas  had  been  cut  off  at  the  service  cock  there 
Avould  have  been  no  explosion,  It  was  held  that  it  was  a  ques- 
tion for  the  jury  whether  the  gas  company  was  guilty  of  negli- 
gence, or  whether  the  accident  happened  in  consequence  of 
the  negligence  of  the  plaintiff  or  his  tenant.  A  non-suit  was 
held  to  be  erroneous."^*  Where  the  explosion  was  alleged  to 
have  been  occasioned  bv  a  o-asfitter  called  to  make  a  connection, 
who,  it  was  claimed,  did  so  without  turning  off  the  gas,  it  was 
held  to  be  a  question  for  the  jury  to  decide  whether  the  gas 
company  was  guilty  of  negligence.  The  evidence  was  conflict- 
ing."^^ Where  the  explosion  was  occasioned  by  the  light  of  the 
workman  making  a  connection ;  and  the  company  insisted  that 
there  was  not  a  strong  smell  of  gas,  and  the  workmen  were 
therefore  justified  in  using  the  light,  it  was  held  to  be  a  question 
for  the  jury  whether  or  not  the  workmen  had  been  guilty  of 
negligence. "^^  Where  the  city  officers  had  removed  the  earth 
supporting  the  gas  company's  pipes,  in  constructing  a  sewer, 
and  the  gas  company  requested  the  court  to  charge  the  jury  that 
it  was  unreasonable  to  require  it  to  have  an  inspector  present 
to  see  if  the  pipes  were  projDerly  supported,  and  having  a  right 
in  the  street,  it  might  rely  upon  the  city  to  notify  it  of  the  con- 
dition of  the  pipes;  but  the  court  refused,  and  charged  the  jury 
that  it  was  a  question  for  it  to  decide  whether  or  not  the  com- 
pany had  used  due  care."^^  Wliere  it  was  alleged  that  the  com- 
pany had  negligently  permitted  gas  to  escape  from  its  street 
mains  and  enter  a  house  where  lights  were  known  to  be  burning, 
and  the  evidence  showed  that  the  company's  servants  requested 
that  the  lights  be  put  out ;  but  the  plaintiff  insisted  that  the  gas 

234  Chisholm   v.   Atlanta   Gaslight  tlie  meter.     Hacker  v.  London  Gas- 
Co..   57   Ga.   28.  light  Co.,  32  Gas  J.  781. 

235  Mersey   Docks,   etc.,   v.    Liver-  236  Ellis  v.  London  Gaslight   Co., 
pool,  etc.,   Co.,  26  Gas  J.  327.     The  32  Gas  .J.  840. 

verdict. was  for  the  plaintiff.  ^237  Butcher  v.  Providence  Gas  Co., 

The  same  method  of  determining  12    R.    T.    149;    34    Am.    Rep.    626; 

the  company's  negligence  was  adopt-  Chadwick  v.   Corporation  of  Wigan, 

ed    where    the    explosion   was    occa-  28  Gas  J.   562. 
sioned  by  a  failure  to  keep  water  in 


LEAKS    AND    EXPLOSIONS.  763 

found  entrance  through  an  open  Avindow  nearly  level  with  the 
trench  from  the  main,  a  hole  having  been  made  in  the  main 
near  the  window  for  a  service  pipe ;  it  was  held  that  it  was  a 
question  for  the  jury,  even  though  it  thought  the  gas  thus  en- 
tered, whether  the  gas  j^eople  might  reasonably  nave  foreseen 
it,  were  bound  to  have  the  window  closed."^^     Where  the  service 
pipe  did  not  fit  the  main,  and  there  was  a  subsidence  of  the  soil 
which  carried  down  the  main  a  year  before  the  accident,  which 
was   known   to   the   company's   servants ;    and  the   gas   passed 
under  the  ground  from  the  place  where  the  service  pipe  en- 
tered the  main,  entering  the  kitchen  and  exploded,  it  was  held 
that  there  was  sufficient  evidence  to  go  to  the  jury.^^®     Where 
gas  escaped  from  the  pij^e's  laid  twelve  years  before,  of  which 
the  gas  company  was  duly  notified ;  and  it  sent  servants  to  ex- 
amine the  place,  who  said  there  was  no  danger ;  and  on  a  second 
notification  of  gas  escaping  the  company  sent  two  men  who  put 
in  an  escape  tube ;  and  four  days  later  an  explosion  occurred, 
injuring  the  plaintiff;  it  was  held  to  be  a  question  for  the  jury 
whether  or  not  the  company  had  exercised  due  care  under  the 
circumstances.-*"     Where  it  was  alleged  that  the  servants  of 
the  gas  company  causing  the  explosion  were  drunk  when  re- 
pairing the  leak,  and  that  there  was  a  small  explosion  previously 
from  a  break  in  the  pipe,  which  had  been  improperly  repaired ; 
it  was  held  that  the  defendant's  care  Avas  a  question  for  the 
jury.-"     Where  the  plaintiff  put  in  a  "  bent,"  close  to  the  joint 
with  the  service  pipe,  and  also  put  in  other  pipes,  all  of  which 
was  inspected  and  approved  by  the  gas  company,  and  the  evi- 
dence showed  they  had  been  carefully  put  in,  and  ther€  was  no 
decisive  evidence  to  show  how  the  "  bent  "  became  cracked,  but 
it  was  shown  that  the  explosion  was  caused  by  a  servant  of  the 
company  carelessly  lighting  a  match  in  the  cellar  into  which 
the  gas  had  escaped  from  the  leak  in  the  "  bent  " ;  it  was  held 

238  Blenkiron  v.  Great  Central  240  Boothman  v.  Mayor,  etc..  of 
Gas,  etf.,  Co.,  2  F.  and  F.  437;  9  Burnley,  20  Gas  J.  585.  The  ver- 
Gas   J.   292,    776;    3    L.    T.   R.    317.        diet   was   for  the  plaintiff. 

The  verdict  was  for  the  defendant.  2*1  Hann  v.  Weymouth,  etc.,   Co., 

239  Fare    v.    Bath     Gaslight    and        18  Gas  J.  186. 
Coke  Co.,  25  Gas  J.  566. 


764  OIL    AND    GAS. 

that  the  leak  in  the  ph^intiff's  pipe  was  not  as  a  matter  of  law 
evidence  of  the  plaintiff's  negligence,  but  that  it  was  a  question 
for  the  jury."*"  Where  the  defendant  denied  that  it  luid  negli- 
gently permitted  gas  to  escape  from  its  pipe,  and  insisted  that 
the  leak  was  caused  hv  the  negligence  of  the  citv  officers  in  not 
properly  packing  the  earth  under  a  pipe  in  building  a  sewer,  it 
was  held  to  be  a  question  for  the  jury  whether  or  riot  the  com- 
pany had  used  due  care  in  seeing  that,  in  restoring  the  earth 
to  its  place,  its  pipes  were  properly  supported,  and  if  injured, 
to  see  that  the  injury  was  repaired  as  soon  as  it  could  reason- 
ably be  done."*'*  Where  it  appeared  that  the  explosion  was 
occasioned  by  a  theft  of  a  gas  pipe  and  the  going  into  the  cellar 
with  a  light ;  and  the  evidence  was  conflicting  whether  notice 
of  the  leak  had  been  given  to  the  company,  the  secretary  testify- 
ing that  the  complaint  book  showed  that  no  notice  of  a  leak  had 
been  given;  the  court  charged  the  jury  that  it  Avas  a  question  for 
them  whether  the  accident  had  been  caused  by  the  negligence  of 
the  company."**  Where  it  was  claimed  that  an  explosion  oc- 
curred from  the  negligence  of  the  meter  taker,  who  had  re- 
moved a  meter  and  left  a  pipe  open,  so  that  when  the  plaintiff 
turned  on  the  gas  it  flowed  from  the  pipe  and  ignited,  and 
the  company  insisted  that  the  employee  properly  stopped  the 
pipe  with  white  lead,  etc.,  it  was  held  to  be  a  question  for  the 
jury  whether  he  had  done  so.^*^  "\^^iether  applying  one's  nose 
to  an  opening  in  a  floor  wherein  a  gas  pipe  was  plugged,  and 
from  which  the  gas  escaped,  to  ascertain  if  the  gas  was  escaping 
is  an  act  that  due  care  requires,  there  being  other  well  known 
tests,  w\4s  held  to  be  a  question  for  the  jury.  Where  the  plain- 
tiff lighted  a  gas  radiator,  laid  down  on  a  couch  in  the  room  and 
went  to  sleep ;  and  while  asleep  the  gas  company,  in  order  to 
improve  the  gas  pressure,  cut  off  the  gas  in  the  building,  drew 

242  Lannen     v.     Albany     Gaslight  244  Griffiths  v.  City  of  London  Gas 
Co.,   46   Barb.   2G4;    affirmed  44   N.       Co..  16  Gas  J.  139. 

Y.   459.  2ip\Vard    v.    Gaslight    and    Coke 

243  Butcher  V.  Providence  Gas  Co.,  Co..   14  Gas  J.  915;    15  Gas  J.  45, 
12    Pv.    I.    149;    34    Am.    Rep.    626;  75;   16  Gas  J.   10,  38,  74,  108. 
]\ledex  V.  Gaslight  and  Coke  Co.,  15 

Gas  J.  75. 


LEAKS    AXD    EXPLOSIONS.  765 

off  the  water  accumulated  in  the  pipes,  and  turned  on  the  gas 
again,  its  usual  practice  being  to  warn  the  tenants  of  buildings 
of  its  intention  to  obstruct  the  flow  of  gas,  but  the  evidence  was 
conflicting  as  to  what  steps  the  company's  servants  endeavored  to 
warn  the  plaintiff,  there  being  testimony  that  they  knocked  on 
the  door,  but  not  sufficiently  lound  to  arouse  the  plaintiff ;  it  was 
held  that  it  was  a  question  for  the  jury  whether  the  company's 
employees  used  such  care  as  was  incumbent  on  them  under  the 
circumstances,  but  there  was  no  question  of  contributory  negli- 
gence."**' Where  gas  escaped  into  a  cellar  from  a  pipe  eleven 
feet  away  resting  in  soft  and  shaly  soil ;  and  there  was  an  aban- 
doned coal  mine  under  the  entire  neighborhood ;  and  after  the 
explosion  the  coal  was  found  to  be  burning;  and  one  witness 
testified  that  the  pijDe  had  broken  on  account  of  a  sewer  excava- 
tion, and  another  that  the  pipe  Avas  rotten ;  and  there  was  evi- 
dence of  an  earlier  trouble  at  the  same  point ;  it  was  held  that 
it  was  a  question  for  the  jury,  under  the  gas  company's  claim 
that  the  leakage  was  caused  by  the  mine's  caving  in  on  account 
of  the  fire,  whether  it  had  been  guilty  of  negligence,  and  that  it 
was  error  to  direct  a  verdict  in  its  favor."*'  ^Vllere  a  company's 
piping  was  not  connected  with  the  piping  in  a  building  until  the 
owner  or  tenant  made  an  application  for  gas  and  furnished  plans 
of  the  piping  in  the  building,  whereupon  the  company  delivered 
a  meter,  letting  the  applicant  make  connection  with  its  pipes, 
without  itself  making  an  examination :  and  the  tenant  of  a  store 
room,  having  received  a  meter,  engaged  a  plumber  to  put  it  in 
and  make  the  connection ;  and  a  pipe  running  into  an  apartment 
above  the  store  was  uncapped,  from  which  gas  escaped,  killing 
the  tenant's  child ;  it  was  held  to  be  a  question  for  the  jury 
whether  the  gas  company  had  used  reasonable  precautions."*^ 
Where  the  gas  escaped  through  a  break  in  the  street  pipe  into 
the  plaintiff's  sleeping  room,  to  his   injury ;   and  the  evidence 

246  Beyer  v.  Consolidated  Gas  Co.,  248  Schmeer  v.  Gaslight  Co.  of 
44  N.  Y.  App.  Div.  1.58;  60  X.  Y.  Syracuse.  147  X.  Y.  529;  42  X.  E. 
Supp.    628.  Rep.  202;    30  L.  R.  A.  653;  revers- 

247  Heh  V.  Consolidated  Gas  Co.,  ing  65  Hun  378;  26  X.  Y.  Supp. 
201  Pa.   St.  443;   50  Atl.  Rep.  994;  1128;  20  X.  Y.  Supp.   168. 

88  Am.  St.  Rep.   819. 


766  OIL    AND    GAS. 

showed  that  the  break  was  probably  caused  by  the  settling  of 
the  earth  after  the  construction  of  a  nearby  sewer ;  and  that  the 
gas  had  been  escaping  a  Avhole  day  when  discovered  by  a  police- 
man;  it  was  held  that  there  was  evidence  enough  to  justify  the 
submission  of  the  case  to  the  jury."''  Where  the  bills  of  the 
gas  company  had  a  notice  on  them  that  information  of  all  leaks 
should  be  sent  to  the  office  of  the  company;  that  a  complaint 
of  a  leak  was  made  to  an  employee  of  the  company,  and  he 
promised  to  have  it  repaired ;  that  afterwards  a  man  sent  to 
examine  the  leak  found  it  in  a  chandelier,  and  worked  about 
twenty  minutes  in  repairing  it ;  that  the  gas  escaped  during 
the  night,  to  plaintiff's  injury,  from  the  chandelier,  in  which 
the  next  day  was  found  a  leak,  which  an  expert  testified  could 
not  be  properly  stopped  without  taking  down  the  chandelier  and 
taking  off  the  casing ;  it  was  held  that  there  was  evidence  for  the 
jury  from  which  to  determine  whether  the  gas  company  had 
undertaken  to  find  and  stop  the  leak,  in  which  event  it  would 
be  liable."^"  Where  the  gas  company  had  no  system  of  inspec- 
tion, but  waited  for  complaints  before  making  inspections ;  and 
some  of  its  pipes  had  been  laid  in  cinder  for  twenty  years, 
which  had  a  tendency  to  corrode  them ;  the  question  of  negli- 
gence was  considered  one  for  the  jury."^^  The  coincidence  of 
the  decay  and  death  of  vegetation  with  the  leakage  of  a  large 
amount  of  gas  after  the  laying  of  a  new  main  and  until  its 
recalking;  and  the  fact  of  the  healthy  growth  of  vegetation  after 
the  recalking,  will  sustain  a  conclusion  of  the  jury  that  the 
escape  of  the  gas  was  the  cause  of  the  injury.^^-  A  gas  com- 
pany's street  main  ran  within  a  few  feet  of  the  cellar  of  a  iac- 
tory.  An  explosion  occurred  in  the  factory,  injuring  the 
plaintiff.  Several  months  previous  to  t-.at  time  a  sewer  con- 
nection for  the  factory  had  been  made,  which  ran  under  the 

249Greaney  v.   Holyoke,  etc.,  Co.,  Co.,  2  Pa.  Super.  Ct.  179;  39  W.  N. 

174  Mass.  437;    54  N.  E.  Rep.  "880.  C.  28. 

250  Ferguson    v.    Boston    Gasliprht  ^  252  Evans    v.    Keystone    Gas    Co., 

Co..  170  Mass.    182;   49  N.  E.  Rep.  148  N.  Y.  112;  42  X.  E.  Rep.  513; 

115.  28  Chic.  Leg.  News.   160;   30  L.  R. 

25iPrichard  v.  Consolidated  Gas  A.  651;  51  Am.  St.  Rep.  681;  affirm- 
ing 21  N.  Y.  Supp.  161. 


LEAKS  a:n^d  explosions.  Ibi 

gas  main.  The  testimony  of  the  phiintitf  tended  to  show  escap- 
ing gas  had  been  detected  at  the  place  where  the  gas  main 
crossed  the  sewer  connection  for  several  weeks  prior  to  the  ex- 
plosion, which  occurred  on  the  opening  of  a  trap  door  into  the 
cellar ;  that  soon  after  an  old  and  rusty  break  in  the  pipe  imme- 
diately in  front  of  the  factory  was  discovered,  and  that  the  com- 
pany had  been  notified  of  the  presence  of  gas  in  the  neighbor- 
hood more  than  two  weeks  before  the  explosion,  but  did  nothing 
in  response  to  it.  The  gas  company  denied  receiving  notice,  and 
gave  testimony  in  general  rebutting  the  plaintiff's  testimony. 
The  plaintiff  claimed  that  the  gas  escaped  from  a  break  in  the 
gas  main,  passed  through  the  sand  until  it  reached  the  sewer 
pipe,  followed  this  into  the  cellar,  and  there  collected.  It  was 
held  that  the  case  was  one  for  the  jury."^^  For  two  weeks  prior 
to  an  explosion  of  gas  in  a  sewer  manhole  escaping  gas  had  been 
detected ;  and  it  was  the  duty  of  the  employees  of  the  gas  com- 
pany lighting  street  lamps  to  report  leaks  they  had  detected. 
A  leak  in  a  main  one  hundred  feet  from  the  explosion  was 
found  in  this  main  immediately  after  the  explosion  occurred, 
was  repaired,  and  the  gas  ceased  to  flow.  About  two  weeks  be- 
fore the  explosion  the  company  had  been  notified  of  escaping 
gas ;  and  upon  examination  no  escape  of  gas  had  been  found. 
It  was  possible  for  the  escaping  gas  from  the  leak  to  find  its 
way  through  the  earth,  enter  sewers,  and  accumulate  in  covered 
sewer  holes.  There  was  no  probability  of  gas  escaping  from 
any  other  gas  main  than  that  of  the  defendant  company.  It 
was  held  that  there  was  evidence  enough  to  support  a  verdict 
for  the  plaintiff,  in  an  action  to  recover  damages  occasioned  by 
the  explosion.""*  Where  the  action  was  to  recover  for  the  death 
of  a  horse,  occasioned  by  it  inhaling  gas,  an  instruction  to  the 
jury  that  if  the  plaintiff  '"  had  reason  to  believe  that  the  gas 
was  escaping,  and  knew  the  danger  of  escaping  gas,  and  left  the 

253  Henderson  v.  Allegheny  Heat-  The  court  charged  the  jury  that 
ing  Co.,  179  Pa.  St.  513;  39  W.  X.  the  evidence  should  exclude  all  other 
C.  485;  36  Atl.  Rep.  312.  theories  than  the  plaintiff's,  tracing 

254  Tiehr  v.  Consolidated  Gas  Co.,  the  origin  of  the  exploding  gas  to 
51   IST.  Y.   App.  Div.  446;   65  N.  Y.  the  break  in  the  defendant's  pipe. 
Supp.  10. 


768 


OIL    AND    GAS. 


horse  there  without  providing  for  the  danger,  thinking  the  es- 
cape of  gas  was  not  sufficient  to  do  any  damage,  he  cannot  re- 
cover," was  held  to  have  been  properly  refused ;  for  as  a  matter 
of  law  negligence  was  not  an  inevitable  and  necessary  inference 
from  the  facts  stated,  but  was  a  question  for  the  jury."^  Where 
the  defect  in  a  gas  pipe  was  occasioned  by  the  construction  of  a 
sewer,  it  was  held  to  be  a  question  for  the  jury  whether  or  not 
the  gas  company  having  a  proper  system  of  inspection  ought  to 
have  known  of  the  leak  sooner  than  it  was  in  fact  discovered. ^'^'"' 
If  there  be  no  evidence  to  show  negligence  on  the  part  of  the 
gas  company,  then  the  court  must  direct  the  jury  to  find  against 
the  plaintiff ;  and  it  is  error  to  submit  the  question  of  negligence 
to  the  jury.""^^  Where  the  explosion  occurred  in  the  cellar,  the 
exploding  gas  having  escaped  from  a  break  at  the  junction  of 
the  service  pipe  with  the  "  riser  " ;  and  the  company's  work- 
men were  engaged  in  repairing  the  mrfTns  opposite  the  house 
in  which  the  explosion  occurred,  but  there  was  no  evidence  to 
connect  them  in  any  way  with  the  explosion,  or  to  show  that 
their  work  in  any  way  affected  the  service  pipe,  the  complaint 
was  dismissed."^* 


255  Lee  V.  Troy,  etc.,  Co.,  98  N. 
Y.   115. 

If  it  IS  shown  that  a  pipe  was 
broken  and  gas  escaped  from  it 
w'hereby  one  is  injured,  the  jury 
may  infer  negligence  on  the  part  of 
the  gas  company  from  the  facts 
thus  shown.  Carmody  v.  Boston 
Gaslight  Co.,  162  Mass.  539;  ,39  N. 
E.   Rep.   184. 

256  Koelsch  V.  Philadelphia  Co., 
152  Pa.  St.  355;  25  Atl.  Rep.  522; 
18  L.  R.  A.  759;  34  Am.  St.  Rep. 
653;  Holly  v.  Boston  Gaslight  Co., 
8  Gray  123;   69  Am.  Dec.  633;  Ki- 


bele  V.  Philadelphia,  105  Pa.  St.  41 
(on  the  duty  of  a  patrolman  to 
notify  the  city  of  a  leak  where  the 
city  is  furnishing  gas  to  consumers) . 

-57  ■  llegheny  Heating  Co.,  v.  Ro- 
han, 118  Pa.  St.  223;  11  Atl.  Rep. 
789. 

It  was  held  that  the  evidence 
of  an  explosion  was  insufficient  to 
submit  to  the  jury,  Hutchinson  v. 
Boston  Gaslight  Co.,  122  Mass.  219. 

258  Krzywoszynski  v.  Consolidated 
Gas  Co.,  4  N.  Y.  App.  Div.  161;  38 
N.  Y.  Supp.  929. 


CHAPTER  XXX. 

INJURIES  CAUSED  BY  OIL  AND  GAS— NEGLIGENCE. 

§G64.  Scope  of  chapter. 

§665.  Fire  on  railroad  communicating  with  refinery. 

§606.  Neglect  in  not  providing  stop-cock. —  Injury  to  servant. 

§667.  Injuries  from  shooting  wells. 

§668.  Oil  escaping  into  sewers. 

§669.  Injury  occasioned  by  exploding  gasoline  fire-pot. 

§670.  Use  of  false  brands. —  Explosion. 

§671.  Negligent    care    of    grounds. —  Fire    communicating    to    adjoining 

houses. 

§672.  Oil  escaping  from   an  exploding  refinery. 

§673.  Rescuer  injured    by  negligence  of  an  oil  or  gas  company. 

§674.  Minor's  employe's  oil-soaked  clothes  catching  fire. 

§675.  Explosion  of  benzine  used  in  paint. 

§676.  Servant  of  oil  company  injured  by  defective  appliances. 

§677.  Injuries  to  servant  of  purchaser. —  Sale  in  violation  of  statute. 

§678.  Sale   of  oil  of  low  fire  test,  explosion. —  Deception. 

§679.  Implied  warranty  in  sale  of  illuminating  oil. 

§680.  Gas  box  in  sidewalk. 

§681.  Negligence  of  contractor. 

§682.  Streets  rendered  dangerous  by  laying  gas  mains. 

§683.  Imperfectly  constructed  gas  building. 

§684.  Exploding  tank  injuring  servant. 

§685.  Servant  entitled  to  safe  place  in  which  to  work. 

§686.  Servant  injured  by  use  of  defective  ladder. 

§664.     Scope  of  chapter. 

It  is  not  the  intention  to  repeat  in  this  chapter  what  has  been 
discussed  in  other  chapters  and  under  heads  more  appropriate. 
Xor  can  there  be  any  systematic  arrangement  of  the  contents  of 
this  chapter  —  the  aim  being  to  gather  up  such  decisions  as 
pertain  to  injuries  that  have  been  caused  by  oil  or  gas,  or  by 
negligent  conduct  in  the  operation  of  gas  works  or  pipe  lines, 
or  in  the  operation  of  oil  leases.     Under  the  head  of  Leaks  and 

769 


770  OIL    AND    GAS. 

Explosions  will  be  found  a  discussion  of  negligence  in  connec- 
tion therewith. 

§665.     Fire  on  railroad  communicating  with  refinery. 

A  railway  company  left  standing  on  its  switch  a  car  used  in 
carrying  tar.  A  passing  locomotive  set  fire  to  it,  and  the  fire 
communicated  to  an  oil  tank  thirty-six  feet  away,  which  was  a 
part  of  the  plaintiff's  oil  refinery.  The  fire  then  communicated 
with  the  refinery  and  it  was  destroyed.  The  company  was  held 
liable,  and  in  passing  on  the  case  the  court  used  the  following 
language:  ''While  this  is  perhaps  a  close  case  upon  its  face, 
we  are  of  the  opinion  that  the  judgment  must  be  affirmed.  It 
could  not  have  been  withdrawn  from  the  jury,  nor  are  we  able 
to  see  any  error  in  the  manner  of  its  submission.  The  learned 
judge  could  not  have  ruled,  as  a  question  of  law,  that  the  plain- 
tiff was  guilty  of  contributory  negligence'^n  erecting  his  oil  tank 
where  he  did.  The  sparks  from  the  locomotive  were  not  likely 
to  set  fire  to  oil  in  the  tank,  nor  did  they  do  so  in  this  case.  The 
accident  would  not  probably  have  occurred,  had  not  the  defend- 
ant company  permitted  a  car,  used  for  carrying  tar,  to  stand 
on  the  track  opposite  to,  and  near,  plaintiff's  oil  tank.  This  car 
caught  fire  from  the  sparks  of  the  engine,  and  was  wholly  or 
partly  consumed.  It  was  the  fire  from  this  car  which  ignited 
the  oil  and  caused  the  destruction  of  plaintiff's  works.  The 
accident  could  have  been  avoided  by  running  the  car  a  short 
distance  away  after  it  had  taken  fire.  This  was  eminently  a 
jury  case."  ^ 

§666.     Neglect  in  not  providing  stop-cock. —  Injury  to  servant. 

An  oil  company  must  provide  the  usual  means  to  prevent  in- 
juries in  case  of  an  accident,  so  that  the  flow  of  the  oil  may  be 
controlled,  especially  where  it  is  used  in  connection  with  fires. 
We  take  the  following  statement  from  an  Illinois  case,  where  a 

1  Confers  v.  New  York,  etc.,  R.  E,. 
Co.,  146  Pa.  St.  31;  23  Atl.  Rep. 
202. 


I-NJUKIES    CAUSED    BY    OIL    A:XD    GAS NEGLIGENCE.        ill 

company  using  large  quantities  of  oil  was  held  liable:  '"'  This 
was  an  action  on  the  case  by  appellee  against  appellant,  to 
recover  for  personal  injury  alleged  to  have  been  received  through 
the  negligence  of  appellant.  For  several  years  before  the  acci- 
dent, appellant  had  been  engaged  in  burning  brick,  and  appel- 
lee worked  as  its  servant  in  that  business.  In  1887,  appellant 
commenced  burning  brick  with  crude  oil  for  fuel,  and  api^llee, 
before  his  injury,  had  assisted  in  burning  several  kilns  of  brick 
by  the  new  method.  In  May,  1888,  shortly  after  the  kiln  was 
fired,  the  injury  occurred.  The  kiln  being  burned  was  70  or 
80  feet  long  and  alwut  30  feet  wide ;  there  were  18  or  20  arches 
running  through  from  side  to  side.  Around  the  kiln,  a  little 
way  from  it,  near  the  ground,  two  pipes  were  laid  side  by  side, 
each  about  two  inches  in  diameter.  One  of  these  pij^es  carried 
steam,  and  the  other  oil  for  fuel.  Opposite  the  end  of  each 
arch,  two  short  pipes,  three-fourths  of  an  inch  in  diameter,  ex- 
tended towards  the  arch,  one  connected  with  the  oil  pipe,  and 
the  other  the  steam  pipe.  The  short  pipe  was  about  two  feet 
and  a  half  long;  the  small  oil  pipe  perhaps  a  foot  long.  On  the 
end  of  the  steam  pipe,  at  each  arch,  was  placed  what  was  known 
as  the  "  burner."  In  the  small  oil  pipes  there  was  a  check  valve 
or  stop-cock,  near  the  main  oil  pii:)e,  and  the  connection  was  made 
between  this  pipe  and  the  burner  by  a  rubber  tube  connecting 
the  short  pipe  with  the  burner.  The  purpose  for  which  the 
rubber  was  used  was  to  permit  expansion  and  contraction  of  the 
small  steam  pipe ;  in  other  w^ords,  so  as  to  make  the  pipe  con- 
taining the  oil  flexible.  The  burner  was  by  this  means  ex- 
tended, not  into,  but  as  near,  the  arch  as  possible,  and  the  oil 
injected  into  the  arch  by  the  action  of  the  steam  through  the 
burner.  On  a  side  track,  20  feet  or  more  away  from  the  kiln, 
common  railroad  oil  tanks  were  run  on  their  trucks,  and  the  oil 
carried  therefrom  by  means  of  a  two-inch  pipe,  and  emptied  into 
the  oil  pipe  surrounding  the  kiln.  Prior  to  the  time  of  the  acci- 
dent, but  one  tank  had  been  used  at  a  time,  and  the  supply  pipe 
from  the  tank  was  fitted  with  a  check  valve  near  its  entrance 
into  the  feed  pipe,  or  the  pipe  encircling  the  kiln.  Each  of  the 
small  pipes  extending  from  the  steam  and  feed  pipes  were  sup- 


772  OIL    AND    GAS. 

plied  with  a  stop-cock  near  the  feed  pipe,  so  that  both  steam  and 
oil  could  be  shut  off  from  tiny  individual  burner.  There  was 
also  a  check  valve  on  the  tank,  by  closing  which  the  flow  of  oil 
from  the  tank  could  be  shut  off.  This  valve  was  so  arranged 
that  it  could  not  be  turned  by  hand,  but  necessarily  required 
the  use  of  a  wrench  or  tongs.  In  the  afternoon  before  the  acci- 
dent, the  kiln  being  in  condition  to  fire,  Williams,  the  kiln  fore- 
man, was  ordered  by  appellant,  through  its  superintendent,  to 
cut  the  feed  pipe  in  the  middle  of  the  kiln  on  each  side  and  stop 
the  ends,  which  was  done.  Prior  to  this,  there  had  been  in  use 
what  was  known  as  the  Brown  burner.  They  were  directed  to 
attach  the  Brown  burner  to  one-half  of  the  feed  pipe,  or  the  pipe 
encircling  one-half  of  the  kiln,  which  appellee  and  the  gang  of 
men  with  him,  under  the  direction  of  the  steamfitter  of  appel- 
lant, did.  By  the  cutting  of  the  oil  pipe,  the  circulation  of  oil 
around  the  kiln  was  impossible,  and,  toisupply  the  other  end, 
another  tank  was  run  upon  the  side  track,  and  attached,  by  a 
new  supply  pipe,  with  the  other  half  of  the  feed  pipe,  so  as  to 
furnish  oil  to  run  the  other  burners  to  be  thereto  attached.  The 
purpose  was  to  test  the  relative  merits  of  the  Brown  burner, 
and  another  called  the  Cannon  burner,  to  see  which  would  con- 
sume the  greater  amount  of  oil  in  producing  the  requisite  con- 
tinued heat.  The  attachment  between  the  additional  tank  and 
the  pipe  surrounding  the  half  of  the  kiln  at  which  the  Cannon 
burners  were  to  be  tested,  including  putting  on  the  burners, 
was  made  by  '  Mr.  Cannon  and  his  men,'  possibly  assisted  by 
Mr.  Williams,  kiln  foreman,  and  perhaps  other  fellow  Avorkmen 
about  the  kiln.  Cannon  had  been  a  gasfitter,  was  familiar  Avith 
the  work,  but  neither  he  nor  the  men  under  him  were  in  the  em- 
ploy of  appellant.  In  making  connection  between  the  tank  and 
the  feed  pipe  encircling  the  half  of  the  kiln  at  which  the  Cannon 
burners  were  put,  no  stop-cock  or  valve  was  put  in  where  the 
supply  pipe  from  the  tank  joined  the  feed  pipe,  so  that  the  oil 
running  to  the  Cannon  burners  could  be  shut  off  only  at  two 
points  —  at  the  tank,  and  at  the^mall  stop-cocks  where  the  small 
burner  pipes  joined  the  feed  pipe.  At  the  other  end,  the  supply 
pipe  formerly  in  use  was  put  in,  which  was  supplied  with  the 


INJURIES    CAUSED    BY    OIL    AND    GAS  NEGLIGENCE.       773 

check  valve  near  the  feed  pipe.  This  arrangement  of  the  pipe 
to  which  the  Cannon  burners  were  attached  was  made  by  Can- 
non, and,  as  before  said,  possibly  with  the  knowledge  of  the 
foreman ;  bnt  appellee,  not  the  gang  of  men  with  whom  he 
worked,  had  no  notice  that  the  sto}>cock  at  the  joining  of  the 
supply  and  feed  pipes  had  been  omitted.  The  rubber  pipe  lead- 
ing to  the  burner,  from  the  heat  and  action  of  the  oil,  was  soon 
destroyed,  and  would  break  or  crack  off,  permitting  the  oil  to 
escape,  and  the  oil,  being  highly  inflammable,  would  catch  fire 
from  the  heat  of  the  arch,  and  prevent  the  close  of  the  small 
check  valve  in  the  pipe  leading  to  the  burner ;  and  in  such  case 
the  stop-cock  at  the  junction  of  the  supply  and  feed  pipes  had 
always  been  used,  and,  by  shutting  off  the  oil  there,  a  conflagra- 
tion was  prevented.  This  condition  of  things  was  known  to 
appellant,  and  it  had  supplied  rubber  tubing  in  considerable 
quantities  to  take  the  place  of  such  as  might  be  destroyed  in 
that  way.  It  is  shown  that  the  breaking  of  the  rubber  and 
escape  of  the  oil  was  frequent,  the  rubber  lasting  sometimes 
during  the  burning  of  a  kiln  and  sometimes  not.  The  kiln  was 
fired  in  the  evening.  Appellee  and  the  gang  of  men  under  him 
were  in  charge  of  the  end  of  the  kiln  to  which  the  oil  or  Bro-^vn 
burners  were  fixed,  and  Williams  and  another  shift  of  men  in 
charge  of  the  other  end,  until  about  12  o'clock  midnight,  when 
Williams  and  his  gang  retired,  and  appellee  and  two  helpers 
took  charge  of  the  entire  kiln.  About  4  o'clock  in  the  morning 
appellee  was  on  a  ladder  at  the  side  of  the  kiln,  observing  the 
top,  when  a  rubber  hose,  connecting  with  one  of  the  Cannon 
burners  burst,  and  the  oil  immediately  took  fire,  and,  extending, 
so  covered  the  small  stop-cock  that  it  was  impossible  to  close  it. 
He  ran  immediately  to  the  place  where  the  supply  pipe  joined 
the  feed  pipe,  expecting  to  find  the  stop-cock,  where  it  had  al- 
ways previously  been  found,  but  found  none.  He  called  to  the 
other  employees,  and  went  himself  about  200  feet,  and  turned 
in  the  fire  alarm,  and  immediately  returned  to  the  end  of  the 
kiln  where  the  fire  was  spreading.  The  fire  was  spreading 
rapidly,  was  very  hot,  and,  fearing  an  explosion  of  the  oil  in  the 
tank,  appellee  determined  to  disconnect  the  tank  from  the  sup- 


774  OIL    AND    GAS. 

ply  pipe,  and  get  it  away  from  the  fire.  For  this  purpose  he 
directed  one  of  the  men.  to  shut  off  the  tank ;  that  is,  to  close  the 
valve  between  the  tank  and  the  supply  pipe.  One  of  the  men 
went  on  to  the  tank  for  that  purpose,  and  again  got  off.  Ap- 
pellee inquired  if  the  valverhad  been  closed,  and  one  of  the  men 
replied  that  it  had.  He  again  inquired,  and,  upon  being  as- 
sured that  it  had  been  closed,  he  went  under  the  tank,  discon- 
nected the  feed  pipe  from  the  tank,  when  the  oil  from  the  tank 
flowed  over  him,  and  saturated  his  clothing,  which  instantly 
caught  fire  from  the  burning  oil  spreading  from  the  feed  pipe. 
Appellee  was  seriously  injured.  It  appears  that  the  man  who 
went  upon  the  tank  to  close  the  valve  endeavored  to  do  so  with 
his  hands.  Finding  that  impossible,  he  ran  to  get  a  wrench; 
but  upon  his  return  the  fiames  were  sweeping  over  the  tank,  and 
drove  him  away.  The  negligence  charged  in  the  declaration, 
in  the  first  count,  was  the  neglect  of  appellant  to  furnish  proper 
and  safe  connections  between  the  tank  and  the  brick  kiln,  and 
that  appellant  negligently  and  improperly  provided  and  used 
a  connection  made  of  rubber,  which  w^as  unsuitable  and  im- 
proper for  such  purposes ;  that  the  rubber  became  heated  and 
cracked  and  broke,  permitted  the  oil  to  escape,  which  took  fire, 
etc.  The  second  count  alleged  the  use  of  crude  oil  Avas  dan- 
gerous and  hazardous ;  that  plaintiff  was  in  appellant's  employ 
as  assistant  to  the  foreman,  and  his  employment  necessarily 
brought  him  near  to  the  tanks,  kilns,  etc.,  and  it  became  and 
was. the  duty  of  appellant  to  exercise  a  high  degree  of  care  and 
diligence  in  providing  proper  and  safe  appliances  around  the 
brick  kiln  and  oil  tank,  and  proper  connections,  etc.,  and  also 
to  provide  a  safety  check,  or  some  suitable  device,  to  stop  the 
flow  of  oil  in  case  of  accident,  etc.,  so  as  to  insure  the  safety  of 
its  employees ;  yet  appellant  did  not  do  so,  but  carelessly,  negli- 
gently, and  improperly  provided  a  connection  made  of  rubber, 
which,  on  becoming  heated,  vulcanized  and  broke,  and  the  oil 
thereby  escaped,  and,  not  having  provided  suitable  and  proper 
appliances  by  which  the  flow  of  the  oil  could  be  checked,  the 


i;X JURIES    CAUSED    BY    OIL    AND    GAS  NEGLIGENCE.       775 

flames   from  the  kiln   communicated   with   the   oil,   resulting, 
etc."  =^ 


§667.     Injuries  from  shooting  wells. 

Under  proper  circumstances  and  at  proper  times  it  is  not 
unlawful  to  shoot  a  well  so  as  to  increase  the  flow  of  gas  or  oil ; 
but  to  shoot  a  well  in  a  densely  settled  community,  as  in  a  city, 
is  so  dangerous  an  undertaking  that  a  court  of  equity  will  enjoin 
it.^  A  well  may  be  shot  so  carelessly  or  at  so  improper  a  time 
as  to  render  those  shooting  it  liable  for  damages  incurred  by  the 
act  of  shooting  it.  Thus  where  a  company  engaged  in  the  busi- 
ness of  shooting  wells  Avith  powerful  explosives,  was  employed 
to  shoot  a  well  in  a  village,  and  its  practice  was  to  carefully 
lower  the  explosive  to  the  bottom  of  the  well,  and  then  explode 
it  by  dropping  into  the  well  a  weight  called  a  "  go-devil  " ; 
and  the  shooting  company  claimed  that  its  agent  instructed  the 
owner  of  the  well  not  to  drop  the  "  go-devil "  until  morning  ar- 
rived, and  that  he  disobeyed  the  instruction  and  let  it  drop  at 
7:30  in  the  evening;  and  it  appeared  because  of  the  season  (it 
was  September)  fires  and  lights  were  burning  when  the  well  was 
shot ;  and  it  was  well  known  that  when  a  well  was  shot  large 
quantities  of  gas  would  escape  from  the  well  and  settle  close 
to  the  earth  under  certain  conditions  of  the  atmosphere,  and 
explode  if  it  came  in  contact  with  fire ;  and  it  was  shown  that 
an  engine  near  the  well  had  a  fire  in  it ;  and  when  the  well  was 
shot  gas  escaped,  exploded  and  injured  a  boy  permanently,  the 
shooting  company  was  held  liable,  and  could  not  shift  the  lia- 
bility upon  the  owner  of  the  well ;  for  it  was  hired  to  shoot  the 
well,  and  the  owner  in  dropping  the  "  go-devil  "  was  simply  act- 
ing for  and  in  their  place  and  stead.*  In  this  case  it  was  held 
proper  to  ask  a  witness,  who  knew  the  prevailing  custom  of  well 
shooters,  if  100  quarts  of  nitroglycerine  were  lowered  into  a 

2  Pullman  Palace  Car  Co.  v.  R.  A.  443 ;  Hill  v.  Schneider,  43  N". 
Laack.  143  111.  242;  32  X.  E.  Rep.  Y.  Siipp.  1;  13  N.  Y.  App.  Div. 
285;    18  L.  R.  A.  21.5.  299;  4  X.  Y.  Ann.  Cas.  70. 

3  People's  Gas  Co.  v.  Tyner,  131  *  Ohio,  etc.,  Co.  v.  Fishburn,  61 
ind.  277;   31  X.  E.  Rep.  59;   16  L.  Ohio  St.  608;   56  X.  E.  Rep.  457. 


776  OIL    AND    GAS. 

well,  the  well  "  logged  "  on,  the  derrick  boarded  up  except  an 
opening  facing  the  engine  and  belt  house,  the  well  situated  80 
to  200  feet  from  residences  surrounding  it,  the  village  contain- 
ing 1,200  inhabitants,  and  the  condition  of  the  atmosphere  was 
such  that  when  the  gas  was  liberated  it  would  settle  near  the 
earth  —  if  it  would  be  a  proper  time  to  shoot  the  well  at  7  :30  in 
the  evening  of  September  7,  when  darkness  had  intervened  and 
fires  and  lights  were  lit  in  residences  and  business  houses.  It 
was  said  that  the  fact  called  for  was  not  an  ultimate  fact  in 
issue,  was  not  a  subject  of  common  knowledge,  nor  one  that  the 
jury  could  as  well  judge  as  the  witness.  As  the  expert  knew 
all  the  dangers  incident  to  the  explosion,  at  the  place  and  hour 
and  in  the  surroundings,  it  was  considered  that  his  opinion 
would  aid  the  jury  in  drawing  a  conclusion,  better  than  they 
could  draw  from  the  facts  proven. 

K 

§668.     Oil  escaping  into  sewers. 

It  is  the  duty  of  an  oil  company  to  keep  its  oil  on  its  own 
premises,  and  if  it  permit  it  to  escape,  and  thereby  another  is 
injured,  it  will  be  liable.  The  liability  does  not  seem  to  rise 
out  of  any  negligent  act ;  but  out  of  a  duty  of  the  company  to 
keep  on  its  own  premises  an  agency  that  may  work  an  injury  to 
another,  or  at  least  in  all  likelihood  will  do  so.  Thus  where 
petroleum  escaped  from  an  oil  tank,  percolated  through  the  soil 
to  a  sewer  in  which  gases  formed  from  the  oil,  and  found  their 
way  into  a  bakery  and  so  contaminated  the  air  as  to  injure  the 
products  manufactured  by  the  baker,  it  was  held  that  the  com- 
pany permitting  the  oil  to  escape  was  liable.  The  fact  of  the 
sewer  conveying  the  gases  to  the  bakery,  and  that  they  would 
not  have  reached  the  bakery  but  for  it,  was  considered  not  to 
make  the  negligence  of  the  owner  of  the  oil  remote,  for  the  reason 
that  the  sewer  was  a  condition  rather  than  a  cause,  not  an  inde- 
pendent cause  of  the  injury  making  it  the  proximate  cause.'^     If, 

R  Brady  v.  Detroit,  etc.,  Co..  102 
Mich.  277;  60  N.  W.  Rep.  687;  26 
L.  R.  A.   175. 


INJURIES    CAUSED    BY    OIL    AXD    GAS  NEGLIGENCE.       7ii 

however,  the  escape  of  the  oil  is  unavoidable,  then  the  oil  com- 
pany will  not  be  liable  for  its  escape  and  the  injury  it  inflicts. 
Thus  where  oil  was  properly  stored,  but  a  fire  broke  out  on  the 
premises  without  the  neglect  of  the  company,  and  the  oil  es- 
caped to  adjoining  premises,  from  which  it  was  drained  by  a 
ditch  dug  pursuant  to  the  orders  of  the  fire  chief  of  the  city 
into  a  sewer,  no  person  or  officer  of  the  oil  cCmpany  giving  any 
direction  concerning  the  digging  of  the  ditch  or  as  to  the  turn- 
ing of  the  oil  into  it ;  and  the  petroleum  generated  gases  in  the 
sewer,  which  exploded,  resulting  in  a  death,  it  Avas  held  that  the 
oil  company  was  not,  but  the  city  was,  liable.'' 

§669.     Injury  occasioned  by  exploding  gasoline  fire-pot. 

A  tinner  was  employed  to  put  on  a  part  of  a  building  a  tin 
roof,  while  upon  the  remaining  part  a  shingle  roof  was  being 
put  on,  by  another  contractor.  In  doing  so  he  used  a  gasoline 
fire-pot  to  heat  his  soldering  iron.  The  wind  was  blowing,  and 
to  prevent  it  blowing  the  fire  the  tinner's  servant  set  up  some 
shingles  on  both  sides  of  the  fire-pot ;  but  they  catching  afire,  he 
set  up  some  tin.  The  tin  so  reflected  the  heat  of  the  fire  as  to 
raise  the  temperature  of  the  gasoline  in  the  tank  of  the  fire-pot 
that  it  exploded,  and  injured  a  servant  of  the  person  putting 
on  the  shingle  roof.  The  tinner's  servant  knew  that  gasoline 
would  explode  when  heated  sufficiently.  It  was  held  that  the 
tinner  was  liable  to  the  servant  of  the  contractor  putting  on  the 
shingle  roof.' 

6  Fuchs  V.  St.  Louis,  133  Mo.  not  liable,  although  he  had  made 
168;  31  S.  W.  Rep.  115;  34  S.  W.  no  test  of  the  cylinders  except  that 
Rep.  508;   34  L.  R.  A.   118.  when  they  were  filled  they  were  sub- 

The  owner  of  dangerous  oil  must  ject    to    a    test   much    greater   than 

keep  it  under  control.     Langabough  continued    afterwards,    there    being 

V.  Anderson,  22   Ohio  Cir.   Ct.   Rep.  no    general    usage   or    custom    as   to 

178;    12  Ohio  C.  D.  341.  testing  them.     Kilbridge  v.  Carbon. 

7  Evans  v.  Hoggatt,  9  Kan.  App.  etc..  Co..  201  Pa.  .552;  51  Atl.  Rep. 
540;  50  Pac.  Rep.  381.  .347. 

When    a    cylinder    charged    with  A  dealer  in  building  materials  is 

carbon     dioxide    very    unexpectedly  not    liable    for    damages    occasioned 

exploded;    and   such    explosion    was  by  a  fire  originating  from  some  im- 

verv    unusual,    the   owner    w;is    lield  known  cause  in  the  basement  of  his 


778  OIL    AND    GAS. 

§670.     Use  of  false  brands. —  Explosion. 

If  oil  be  falsely  branded,  to  render  the  oil  company  liable 
for  damages  occasioned  by  it  exploding,  the  deception  must  in 
some  way  have  led  to  or  be  connected  with  the  injury.  Thus 
where  74  degrees  gasoline  was  marked  "  puroline,"  and  both 
oils  were  manufactured  from  petroleum,  and  both  as  the  evi- 
dence showed,  were  equally  dangerous,  the  deception  was  held 
not  to  be  such  as  to  render  the  oil  company  liable  for  an  explo- 
sion, which  would  have  occurred  even  if  that  grade  of  gasoline 
had  actually  been  furnished.* 

§671.     Negligent  care  of  grounds. —  Fire  communicating  to  ad- 
.    joining  houses. 

An  oil  company  must  keep  its  premises  in  such  a  condition 
that  it  will  not  be  liable  to  lightly  or  *^asily  catch  fire,  and 
thereby  endanger  properties  near  it.  Thus  where  an  oil  com- 
pany permitted  its  buildings  and  grounds  to  become  soaked  with 
oil,  and  also  alloAved  a  large  number  of  "  jackets  "  used  on  oil 
cans  and  barrels  to  accumulate  on  the  premises,  so  that  a  passing 
locomotive  easily  set  them  on  fire,  and  the  fire  reached  adjoin- 
ing buildings  and  destroyed  them,  the  oil  company  was  held  lia- 
ble, for  the  reason  that  if  it  had  kept  its  premises  and  buildings 
in  a  proper  condition  the  fire  would  not  have  been  started,  and 
if  started  could  have  been  controlled.  In  this  case  the  plain- 
tiff's buildings  that  were  burned  had  been  built  after  he  knew 
of  the  condition  of  the  oil  company's  premises  and  buildings ; 
but  this  was  held  to  make  no  difference.®  Xor  would  it  have 
made  any  difference  if  the  plaintiff  had  previously  sold  the 
grounds  to  the  company  to  use  in  their  oil  business. ^°     In  such 

store  where  he  kept  oils,  paints,  var-  a    lighted    lantern   to    aid   them    in 

nishes  and  cotton.     Cook  v.  Ander-  seeing  how  to  work, 

son,  85  Ala.  99;  4  So.  Rep.  713.  »  Waters-Pierce   Oil    Co.   v.   King, 

8  Socala  V.   Chess   Carley   Co.,   39  Q  Tex.  Civ.  App.  93 ;  24  S.  W.  Rep. 

La.  Ann.  344;    1   So.  Rep.   824.     In  "'700. 

this  case  the  servants  of  the  plain-  io,Judson    v.    Giant    Powder    Co., 

tiff    were    guilty    of    negligence    in  107   Cal.    .549;    40   Pac.   Rep.    1020; 

drawing  the  oil  at  night  and  using  29  L.  R.  A.  718. 


INJURIES    CAUSED    BY    OIL    AND    GAS  NEGLIGENCE.       Y79 

an  instance,  the  general  practice  and  custom  of  oil  companies  is 
admissible  to  rebut  the  charge  of  negligence,  but  evidence  of 
the  practice  and  custom  of  a  particular  company  is  not/^ 

§672.     Oil  escaping-  from  an  exploding  refinery. 

Where  oil  escaped  from  a  refinery  because  of  an  explosion, 
and  flowed  do^vn  a  pipe  line  to  a  lighter  in  a  harbor,  used  for 
the  conveyance  of  oil,  set  it  on  fire,  causing  it  also  to  explode, 
and  by  reason  of  it  exploding  a  vessel  moored  in  the  harbor  was 
set  on  fire,  the  refining  company  was  held  not  liable  for  the 
loss  of  the  vessel ;  for  the  reason  that  it  was  not  shown  that  the 
refinery  company  was  negligent  in  the  oj>eration  of  its  works 
nor  the  explosion  caused  by  negligence.  The  mere  fact  of  the 
explosion  was  held  not  to  show  negligence,  for  the  reason  ''  That 
there  is  a  general  disposition  among  men  to  preserve  their  prop- 
erty and  escape  liability,  and  ordinarily  their  motives  will  se- 
cure that  degree  of  care  and  caution  which  the  safety  of  the 
public  demands ;  hence  the  presumption  of  duty  performed 
which  in  cases  of  fire  will  protect  him  until  the  facts  be  proven 
from  which  negligence  can  be  inferred."  ^"  But  this  rule  has 
not  always  been  accepted,  some  of  the  courts  holding  that  the 
fact  of  an  explosion  raises  a  presumption  of  negligence. ^^  Where 
oil  escaped  from  a  refinery  and  reached  water  in  a  harbor ;  and 
it  was  set  on  fire  by  a  person  throwing  a  lighted  match  into 
the  water,  and  the  fire  burned  a  boat,  the  refinery  company  was 
held  not  liable,  the  escape  not  being  the  proximate  cause  of  the 
loss." 


11  standard   Oil   Co.   v.   Swan,   89  12  Cosulich    v.    Standard   Oil    Co., 

Tenn.  434;    14  S.  W.  Rep.   928;    15  122  N.  Y.  118;   25  N.  E.  Rep.  259. 

S.  W.  Rep.  1068;    10  L.  R.  A.  366.  "Warn  v.  Davis  Oil  Co.,  61  Fed. 

Employee  in  restaurant  throwing  Rep.  631;   Judson  v.   Giant  Powder 

out  flaming  gasoline  lamp  that  ex-  Co.,    10"    Cal.    549;    40    Pac.    Rep. 

ploded,   burning  the   plaintiff.      See  1020;  29  L.  R.  A.  718. 

Donahue  v.  Kelly,   181   Pa.   St.  93;  i^Xeal  v.   Atlantic   Refining  Co., 

37  Ati.  Rep.   186;   59  Am.  St.  Rep.  4   Pa.  Dist.  Rep.  49. 
632. 


780  OIL    AND    GAS. 

§673.     Rescuer  injured  by  negligence  of  an  oil  or  gas  company. 

To  render  an  oil  or  gas  company  liable  to  one  who  has  been 
injured  in  attempting  to  rescue  one  imperilled  by  a  fire  or  an  ex- 
plosion, the  company  must  have  been  guiUy  of  negligence  in 
some  way  tliat  imperilled  the  person  whom  the  injured  person 
attempted  to  rescue.  In  such  an  instance  the  oil  company  nnist 
have  been  guilty  of  negligence  toward  the  person  who  was  in 
danger,  or  to  the  rescuer,  in  order  to  hold  it  liable.^"  But  where 
a  city  dug  a  trench  in  the  street,  in  which  gases  accumuhitcd  to 
such  an  extent  that  the  workingmen  abandoned  it,  leaving  it 
open  several  days ;  and  there  was  such  an  arrangement  of  tim- 
bers leading  down  into  it  as  amounted  practically  to  a  ladder, 
down  which  a  lx)y  descended  to  secure  his  ball  that  had  fallen 
into  the  ditch,  the  place  where  he  descended  being  near  a  school 
playground  in  a  populous  part  of  the  city,  when  he  was  overcome 
with  the  gas;  and  his  playmate,  seeing  l^ni  fall  back  into  the 
ditch  as  he  was  coming  out,  went  to  his  rescue,  not  knowing  of, 
the  gas,  and  lost  his  life  in  endeavoring  to  save  his  comrade,  it 
was  held  that  the  city  was  liable  for  the  death  of  the  latter, 
being  bound  for  the  consequences  of  its  neglect,  though  such  con- 
sequences were  not  and  could  not  by  any  ordinary  prudence  have 
been  anticipated.  The  acts  of  the  boy  who  went  to  the  rescue  of 
his  playmate,  it  was  held,  must  be  considered  in  view  of  the 
circumstances  that  he  had  no  time  to  think,  but  must  act  at  once, 
and  that  others  had  gone  into  the  ditch  before  and  returned 
safely,  and  also  that  his  playmate  whom  he  went  to  rescue  re- 
turned after  recovering  from  the  effects  of  the  gas,  and  above  all 
that  he  went  to  the  rescue  of  a  human  being  in  great  and  im- 
minent danger.  Consequently  he  was  not  chargeable  with  er- 
rors of  judgment  resulting  from  the  excitement  of  the  moment.^® 

15  Jackson  v.  Standard  Oil  Co.,  R.  A.  715.  For  analogous  cases, 
98  Ga.  749;  26  S.  E.  Rep.  60;  Don-  see  Maryland  Steel  Co.  v.  Moorney, 
ahue  V.  Wabash,  etc.,  Co.,  83  Mo.  88  Md.  482;  42  All.  Rep.  60;  42 
ij60;  Pennsylvania  Co.  v.  Langen-  L.  R.  A.  842;  Peyton  v.  Texas  & 
dorf,  48  Ohio  St.  316;  28  K  E.  Rep.  J>acific  Ry.,  41  La.  Ann.  801;  6 
172;    13  L.  R.  A.   190.  So.  Rep.  690;    Gibney  v.  State,   137 

16  Corbin  v.  Philadelphia.  195  Pa.  X.  Y.  1;  33  X.  E.  Rep.  142;  19  L. 
St.   461;    45  All.   Rep.    1070;    49   L.  R.  A.   365. 


IKJCmES    CAUSED    BV    OIL    AN'B    OAS  -  NEOUOENCE.       7S1 

§674.     Minor  employee's  oil-soaked  clothes  catching  iire. 

A  tov  was  .vovking  for  an  oil  company,  and  his  clothing  be- 
oat   s;aked   with    oil.      It   was   a   cold   day    and   beconnng 
chilled  he  was  directed  by  the  superintendent  m  charge  of  the 
,,,,ee  to  go  to  an  npper  room  of  the  building  the  company  was 
,sing  anS  warm  himself  at  the  stove  in  ,he  room      He  ..s  no. 
war,ted  that  his  clothing  was  liable  to  take  fire  >f  he  go    c  osc 
,0  the  stove.     He  went  np  into  the  room  and  approached  ch>se 
to  the  stove,  which  was  .pute  bot,  when  his  clothing  took  hre 
He  tried  to  escape  from  the  room,  but  the  door  having  become 
fastened  bv  reason  of  the  lock  being  defective,  he  jumped  out 
of  a.,  upper  window  and  received  injuries  from  winch  he  died. 
The  oil  cou,pauv  was  held  liable,  because  it  was  the  supenn- 
tendenfs  duty  to  warn  the  hoy  of  the  danger  of  getting  close 
to  the  stove  when  his  clothes  were  in  their  ml  soaked  condi- 

^675.     Explosion  of  benzine  used  in  paint. 

A  master  painter  sent  his  servant  to  paint  the  inside  of  a 
water  tank,  which  was  ten  feet  in  diameter  and  twelve  feet 
deep      He  furnished  the  servant  paint  that  had  been  m  common 
use  twelve  vears;  and  the  n.astor  did  n..t  know  the  pamt  was 
dangerous.  ^  It  was  supposed  that  the  paint  contained  a  certam 
amount  of  benzine;  and  when  the  cans  were  opened  and  the 
paint  applied  to  the  sides  of  the  tank  it  threw  off  some  gas 
'vhich,  comina-  in  contact  with  a  light  necessarily  used    caused 
an  explosion  and  injured  the  servant.     The  master  was  held  no 
liable    on  the  ground  that  he  had  provided  such  material  and 
implements  as  were  ordinarily  used  by  persons  in  the   same 
business,   and  he  was  required  to  do  nothing  more.     He  was 
not  required  to  secure  the  best  known  material,  or  subject  tlie 
material  he  used  to  a  chemical  analysis  in  order  to  discover  a 
possible  or  remote  hazard  incurred  by  their  use.*' 

n  Wallace    v.    Standard    Oil    Co.,       McCovnnck.    118    Pa.    St.    519;     12 
66  Fed.  Rep.  260  All.   Rep.    273. 

IS  Allison    Manufacturing    Co.    v. 


782  OIL    AND    GAS, 

§676.     Servant  of  oil  company  injured  by  defective  appliances. 

Where  a  servant  of  an  oil  company  was  injured  by  a  defective 
still  in  the  refinery,  the  refining  company  was  held  liable.  In 
this  case  the  still  was  built  by  an  independent  contractor  ac- 
cording to  the  plans  of  the  president  of  the  company,  and  by  him 
placed  in  the  refinery  of  the  company.  "  If  I  employ  a  well 
known  and  reputable  machinist,"  said  the  court,  "  to  con- 
struct a  steam  engine  and  it  blows  up  from  bad  materials  or 
unskilled  work,  I  am  not  resjwnsible  for  any  injury  which  may 
result,  whether  to  my  servant  or  to  a  third  person.  The  rule  is 
different  if  the  machine  is  made  according  to  my  own  plan,  or 
if  I  interfere  and  give  directions  as  to  the  manner  of  construc- 
tion. The  machinist  then  becomes  my  servant,  and  respondent 
superior  is  the  rule."  ^^  A  servant  descended  with  a  light  into 
an  oil  still  to  repair  it,  and  gas  exploding,  he  was  killed.  His 
employer  was  a  distiller  of  crude  petroleun*!^.  and  used  the  tank 
for  that  purpose.  In  the  distilling  of  the  oil  large  quantities 
of  gas  were  generated,  wdiich  escaped  into  a  running  room  when 
the  stills  were  in  operation  ;  but  when  the  stills  were  empty, 
some  of  the  gas  which  escaped  from  the  pipes  into  the  running 
room  found  its  way  back  into  the  stills,  because  no  stop-cocks 
had  been  put  in  the  pipes  to  shut  it  off.  It  was  necessary  for 
the  employee  to  have  the  light  when  he  went  into  the  still  to 
repair  it.  The  oil  refining  company  was  held  liable  on  the 
ground  that  it  had  not  furnished  safe  appliances  and  a  safe 
place  in  which  to  work.^"  A  refinery  employed  a  servant  to 
manufacture  varnish,  in  which  naphtha  was  used,  by  a  process 
known  only  to  himself.  He  was  injured  by  an  explosion.  He 
claimed  that  the  company  Avas  liable  because  the  appliances 
and  structure  for  the  manufacture  of  the  varnish  were  defective, 
that  the  place  where  he  worked  was  unsafe,  because  near  a 
furnace,  to  the  fire  of  which  the  fumes  or  gas  of  the  naphtha 

19  Ardesco  Oil  Co.  v.  Gilson,  63  tion  of  the  appliances  could  be 
Pa.    St.    146.  shown  by  a  conversation  which  an- 

20  Nicholas  v.  Brush,  53  Hun  137;  ofher  and  former  employee  had  with 
6  N.  Y.  Supp.  601.  In  this  case  it  the  superintendent  of  the  refinery, 
was  held  that   the  defective   condi- 


INJUKIES    CxiUSED    BY    OIL    A^"D    GAS  NEGLIGENCE.      T83 

could  reach,  as  it  did  when  he  was  injured,  of  which  defects  the 
company  had  notice.  It  appeared  that  the  servant  had  designed 
the  appliances,  and  there  were  doors  which  could  be  closed  so 
the  gases  from  the  naphtha  could  not  reach  the  furnace  fire, 
which  was  in  an  adjoining  room.  The  servant  had  full  charge 
of  the  work,  was  skilled  in  his  art;  while  the  defendant  had 
been  ownier  of  the  plant  only  a  week.  The  servant  had  been 
in  the  service  of  the  former  owner  of  the  plant  many  months. 
The  defendant  was  held  not  liable."^  So  where  a  servant,  who 
had  been  at  the  same  work  over  a  year,  went  into  a  still  with  a 
light,  knowing  the  danger  of  an  explosion  of  the  gas  by  reason  of 
its  coming  in  contact  with  the  lighted  candle  he  was  carrying, 
and  w^as  injured  by  an  explosion,  it  was  held  that  the  employer 
was  not  liable.^" 

§677.     Injuries  to  servant  of  purchaser. —  Sale  in  violation  of 
statute. 

It  is  the  duty  of  a  vendor  of  a  dangerous  article  to  give  notice 
of  its  dangerous  qualities  to  the  joerson  to  whom  he  sells  it;  and 
if  he  do  not,  and  an  injury  to  such  person  is  occasioned  by  it, 
which  is  the  natural  and  probable  consequence  of  the  vendor's 
neglect,  such  vendor  is  liable.  And  if  the  sale  has  been  made 
by  an  agent  of  the  vendor,  and  such  agent  is  ignorant  of  the 
dangerous  character  of  the  article,  and  sells  it  to  -a  purchaser 
without  warning,  the  vendor  will  still  be  liable.  The  pur- 
chaser's servant  has  the  same  right  to  recover,  in  case  he  is  in- 
jured, as  the  purchaser  possesses.  Thus  where  the  agent  of  a 
company  sold  110  gallons  of  naphtha  of  the  grade  of  87  degrees, 
the  most  dangerous  naphtha  manufactured  and  sold,  to  a  laur.- 
dryman,  and  assisted  him  in  storing  it  in  a  shed  on  the  rear  of 
the  laundry  premises,  about  thirty  feet  from  where  the  furnace 
of  the  laundry  was  situated;  and  twice  a  day  they  drew  ten 
gallons  and  took  it  into  the  laundry  to  heat  the  ironing  ma- 

2iHauk  V.    Standard   Oil   Co.,   38  22  Benfield  v.  Vacuum  Oil  Co.,  75 

N.  Y.  App.  Div.  621 ;  56  N.  Y.  Supp.       Hun  209;  27  N.  Y.  Supp.  16. 
273. 


784  oil.    AND    GAS. 

chinery;  and  it  was  the  duty  of  a  boy  and  a  foreman  to  remove 
the  gasoline  from  the  place  of  storage  for  use ;  and  when  they 
were  doing  this  on  a  Jnly  day  gas  escaped  from  the  storage 
tank,  penetrated  the  atmosphere,  entered  the  open  door  and  win- 
dow of  the  laundry  building,  came  in  contact  with  the  furnace 
fire,  exploded,  and  so  injured  the  boy  that  lie  died,  the  oil  com- 
pany was  held  liable.  Xo  one  knew  of  the  dangerous  qualities 
of  the  gasoline  except  the  company,  even  its  agent  being  ig- 
norant of  them,  who  innocently  represented  that  there  was  no 
danger  in  storing  the  gasoline  where  it  was  put,  upon  which 
statements  the  purchaser  relied.  The  court  considered  that  the 
local  agent  had  a  right  to  make  the  representations  he  made,  they 
coming  within  his  apparent  authority,  and  they  were  binding 
u]X)n  it,  although  authority  to  make  them  was  not  given  him. 
The  court  refused  to  allow  the  oil  company  to  show  by  a  general 
agent  that  it  was  not  the  custom  to  make  an^y'epresentations  con- 
cerning storage  and  the  use  of  gasoline,  in  view  of  the  fact  that 
representations  were  actually  made  and  the  purchaser  was  not 
aware  of  the  custom ;  and  also  in  view  of  the  fact  that  the  law 
required  a  vendor  of  a  dangerous  article  to  notify  the  vendee 
of  its  dangerous  qualities.  The  court  also  held  that  the  proxi- 
mate cause  of  the  injury  was  the  failure  to  give  the  purchaser 
notice  of  the  dangerous  qualities  of  87  degree  gasoline  and  the 
employment  of  an  agent  ignorant  of  such  qualities.  The  court 
did  not  consider  that  the  negligence  of  the  company  was  re- 
mote by  reason  of  the  fact  that  the  heat  from  the  laundry  may 
have  generated  the  gas,  because  the  oil  was  stored  where  the 
local  agent  of  the  company  directed  it  to  be  placed,  and  also 
because  the  laundryman  was  induced  to  purchase  it  by  reason 
of  the  representations  of  the  local  agent  that  it  was  safe,  that 
he  knew  the  use  to  which  it  was  to  be  put,  and  the  oil  company 
must  have  known  how  it  was  to  be  used,  for  they  shipped  it 
directly  to  the  purchaser. ^^  Where  a  statute  provided  that  "  no 
gasoline  shall  be  sold,  given  away  or  delivered  to  any  person 

23  Waters-Pierce  Oil  Co.  v.  Davis, 
24  Tex.  Civ.  App.  508;  60  S.  W. 
Rep.  453. 


IXJUEIES    CAUSED    BY    OIL    AXD    GAS NEGLIGElSrCE.       785 

in  this  State  until  the  package,  cask,  barrel  or  vessel  contain- 
ing the  same  has  been  marked  gasoline  " ;  and  a  dealer  sold 
gasoline  in  jug  without  marking  it;  and  the  minor  child  of 
the  purchaser  was  injured  by  it,  it  was  held  that  the  vendor  was 
liable.  The  court  considered  that  the  statute  was  for  the  pro- 
tection of  all  }>ersons  in  the  State,  the  label  or  mark  being  re- 
quired to  warn  them  of  the  substance  they  were  handling,  so 
that  the  failure  of  the  vendor  to  properly  mark  the  package  or 
cask  was  negligence  per  se.  In  this  instance  the  girl,  having 
no  knowledge  that  the  oil  was  gasoline,  put  a  small  quantity  of 
it  in  the  stove  to  light  the  fire,  and  on  lighting  it,  it  exploded, 
setting  fire  to  her  clothes.  The  father  and  the  purchaser  knew 
the  jug  contained  gasoline,  but  did  not  tell  her  of  it.  His  neg- 
ligence was  held  not  to  be  imputable  to  her."* 

§678.     Sale  of  oil  of  low  fire  test,  explosion. —  Deception. 

A  sale  of  oil  of  low  fire  test  for  illuminating  purposes  may 
render  both  the  salesman  and  the  manufacturer  liable,  in  case 
of  an  explosion  producing  an  injury ;  and  so  far  as  the  manu- 
facturer is  concerned,  it  matters  not  how  many  dealers'  hands 
through  which  it  passes.  "A  manufacturer  of  oil,"  said  the  court 
in  one  case,  who  sells  it  as  bearing  a  high  and  safe  fire  test, 
"  when  in  fact  he  knows  that  its  fire  test  will  not  exceed  64  to 
65  degrees  Fahrenheit,  and  that  this  is  a  most  explosive  and 
unsafe  oil  for  domestic  use,  can  plead  nothing  in  a  defense  of 
this  willful,  terrible  wrong  to  a  confiding  community.  He  bears 
with  him  a  heart  regardless  of  social  duty,  evidencing  malice 
in  a  legal  sense  in  a  high  degree."  "^  So  where  a  manufacturer 
knowingly  sold  to  a  retail  dealer  naphtha  oil  for  illuminating 
oil,  and  the  retail  dealer  sold  some  of  it  to  a  consumer,  and  an 
explosion  occurred  w^hen  the  consumer  attempted  to  use  it  in  a 
lamp,  the  manufacturer  was  held  liable,  the  consumer  not  know- 
ing the  kind  of  oil  it  actually  was."®     Ignorance  of  the  law  re- 

24  Ives  V.  Wilden,  114  Iowa.  476;  25  Elkins   v.   McKean    79   Pa.   St. 

S7   X.   W.   Rep.   408:    54   L.   E.   A.       493. 

854.  26  Wellington  v.  Downer  Kerosene 

Co.,   104  Mass.   64. 


780  OIL    AND    GAS. 

quiring  a  test  or  whether  the  oil  is  below  the  test  will  not  excuse 
the  vendor."'  The  illegal  intent  will  he  presumed;  and  any- 
thing in  rebuttal  thereof  is  a  proper  matter  for  the  defense.^* 

§679.     Implied  warranty  in  sale  of  illuminating  oil. 

In  the  sale  of  illuminating  oil  there  is  an  implied  warranty 
that  it  is  fit  for  the  purpose  sold,  and  that  it  is  not  below  the 
test  required  by  law,  where  a  statute  requires  a  test  to  be  made 
and  fixes  the  standard.  In  a  ease  of  a  sale  of  oil  that  was  not 
up  to  the  test  required,  and  it  exploded,  causing  the  death  of  a 
person,  it  was  held  that  not  only  the  immediate  salesman  was 
liable,  but  also  the  refiner  wdio  put  it  on  the  market.'^  Where 
an  oil  dealer  sold  a  grocer  naphtha  for  kerosene,  and  the  latter 
sold  it  to  a  consumer,  who  knowing  not  the  contrary,  in  using  it 
was  injured  by  it  exploding,  it  was  held  that  the  dealer  was 
liable  to  the  person  injured. ^^  A  specifi^tion  in  a  contract 
by  the  manufacturer  of  refined  petroleum  for  its  sale,  to  the 
effect  that  it  shall  be  of  a  certain  brand,  color,  and  fire  test,  does 
not  exclude  an  implied  warranty  that  it  shall  be  free  from  latent 
defects  arising  from  the  process  of  manufacture  which  would 
render  it  unmerchantable.^^  A  provision  in  such  a  contract  that 
the  acceptance  of  the  petroleum  by  the  buyers'  inspectors  shall 
be  an  acknowledgment  that  the  goods  are  in  accordance  with 
the  contract;  and  a. certificate  by  the  inspector  to  that  effect,  do 
not  relieve  the  manufacturer  from  liability  on  an  implied  war- 
ranty that  the  petroleum  is  free  from  latent  defects  arising 
from  the  process  of  manufacture,  which  renders  it  unmerchant- 
able.^"    Evidence  that  the  defendant  knew  from  the  manner  in 

27  Downing  v.  State,  66  Ga.  160;  so  Wellington  v.  Downer  Kero- 
Horrigan  v.  Nowell,  110  Mass.  470.  sene   Co.,   104  Mass.    64. 

28  Ihid.  A  statute  prohibiting  the  3i  Carleton  v.  Lombard,  etc.,  Co., 
sale  of  naphtha  does  not  prohibit  149  N.  Y.  137;  43  N.  E.  422;  re- 
the  generation  of  gas  from  naphtha  hearing  denied  149  N.  Y.  35; 
by  a  stationary  gas  machine.     An-  44  N.  E.  Rep.   183. 

derson  v.  Savannah.  69  Ga.  472.  ,» •82  Carleton  v.  Lombard,  etc.,  Co., 

2a  Elkins   v.   McKean,   79    Pa.   St.       supra. 
493;  Hourigan  v.  Nowell,  110  Mass. 
470. 


INJURIES    CAUSED    BY    OIL    AXD    GAS  ^^EGLIGENCE.       78T 

which  it  was  packed  and  from  other  sources  the  place  to  which 
it  was  to  be  sent  by  the  plaintiff,  who  purchased  the  oil  from 
him,  was  held  admissible,  in  an  action  for  breach  of  an  implied 
warranty  that  it  was  free  from  latent  defects  which  would  render 
it  unmerchantable.""  Where  a  statute  provided  that  if  any 
inspector  or  deputy  falsely  branded  or  marked  any  barrel,  or 
was  guilty  of  any  fraud  or  culpable  negligence,  in  the  discharge 
of  his  official  duties,  he  should  be  liable  to  the  party  injured 
for  all  damages  resulting  therefrom,  it  was  held  that  inten- 
tional wi-ong  or  culpable  negligence  was  essential  to  render 
such  inspector  or  his  deputy  civilly  liable,  and  that  there  must 
be  a  casual  connection  between  the  false  branding  to  render 
him  liable  for  the  injury  and  damages  of  which  complaint  is 
made.^* 

§680.     Gas  box  in  sidewalk. 

A  company  empowered  to  manufacture,  make  and  sell  illu- 
minating gas  for  a  city  or  its  streets,  and  any  buildings,  manu- 
factories or  houses  therein,  and  to  lay  pipes  in  the  streets  for 
the  purpose,  is  liable  for  an  injury  occasioned  by  a  gas  box  in 
the  sidewalk  which  furnishes  access  to  a  cock  in  the  service 
\-)ipe  conducting  the  gas  from  the  main  to  the  house;  for  it  is 
a  part  of  the  apparatus  of  the  company  over  which  it  is  bound 
to  exercise  proper  care  to  prevent  an  injury  to  persons  on  the 
sidewalk.^'' 

§681.     Negligence  of  contractor. 

A  gas  company  had  the  proper  authority  to  lay  its  gas  mains 
in  the  streets  of  a  municipality,  and  contracted  with  one  C.  to 

33  Carleton  v.  Lombard,  etc.,  Co.,  branded  would  not  render  the  in- 
siipra.  spector  liable,  if  the  injury  resulted 

34  Hatcher  v.  Dunn,  102  Iowa  411;  from  some  other  cause,  such  as  the 
71  N.  W.  Rep.  343  {affirming  on  use  of  a  defective  and  an  unsafe 
rehearing  66  N.  W.  Rep.  905)  ;   36  lamp. 

L.   R.  A.  689.     In  this  case  it  was  35  Washington     Gaslight     Co.     v. 

also   held   that   liability   of   the   in-  District  of  Columbia,  161  U.  S.  316; 

spector  and  his  sureties  were  purely  16  Sup.  Ct.  Rep.  564;   affirming  20 

statutory.      It    was    also   held   that  D.  C.  39;  Loan  v.  Boston,  106  Mass. 

the    fact   that   the    oil    was   falsely  450. 


788  OIL    AND    GAS, 

lay  tlicm.  The  contractor  failed  to  properly  refill  the  trench, 
and  a  horse  fell  into  it  and  was  injnred.  It  was  held  that  the 
owner  of  the  horse  could  maintain  his  action  against  the  gas 
company,  on  the  ground  that  it  was  obliged  to  restore  the  streets 
to  a  safe  condition ;  and  that  they  could  not  escape  liability  by 
show^ing  that  they  contracted  with  others  to  perform  their  duty 
for  them.'"'  And  if  a  contractor  building  a  sewer  for  the  city 
injure  the  gas  company's  pipes,  he  will  be  liable  to  the  com- 
pany."^ A  contractor  was  to  dig  a  trench  in  the  street  for  a 
gas  company  under  the  supervision  of  the  company's  engineer. 
By  a  subcontract  he  passed  the  work  to  one  Doris,  who  proceeded 
to  dig  the  trench  into  which  the  plaintiff  fell  and  broke  his  leg. 
Doris  employed  and  supervised  the  hands  who  did  the  work,  and 
the  original  contractor  had  no  control  over  them.  It  was  held 
that  the  original  contractor  was  not  liable. ^^ 

§682.     Streets  rendered  dangerous  by  laying  gas  mains. 

A  gas  company  is  liable  to  any  one  injured  by  reason  of  its 
having  torn  up  the  streets  of  a  city  or  town  and  not  having 
taken  sufficient  precautions  to  protect  the  traveling  public,  the 
same  as  an  individual ;  and  it  is  no  excuse  that  it  has  torn  them 
up  with  the  permission  of  the  public  authorities.^^  After  the 
gas  company  has  restored  the  streets  to  their  former  conditions 
as  nearly  as  possible,  it  is  not  bound  to  keep  them  in  repair 
thereafter.*"  A  township  in  Pennsylvania  is  not  liable  for  an 
explosion   of  gas   in   the  highway   escaping   from   a   gas    pipe, 

30  McCamus  v.  Citizens'   Gaslight  v.  Manchester.  2  H.  and  N.  204;  26 

Co.,   40   Barb.   380;    Lebanon   Light,  L.  J.  Exch.  132.  406;  3  Jur.    (N.  S.) 

etc.,  Co.  V.  Leap,   139   Ind.  443;    39  590;  5  W.  R.  598;  Hornby  v.  Liver- 

N.    E.   Rep.   57;    29   L.   R.    A.   342;  pool,   etc..    Gas   Co.,   47    J.   P.   231; 

Ellis   V.    Sheffield   Gas.   etc..    Co.,    2  Whallen   v.    Citizens'   Gaslight    Co., 

Ell.  and  B.  757;  18  Jur.  146.  63  N.  Y.  Rep.  317;   30  N.  Y.  Supp. 

37  Tn   re  Houghton,   20  Hun  395 ;  1077 ;  Pine  Bluff,  etc..  Co.  v.  Derreu- 

Croft.    etc.,    Gas    Co.    v.    Pryor,    31  isseaux,  56  Ark.  132;   19  S.  W.  Rep. 

Gas  J.  386.  428. 

38Wray  v.  Evans.  80  Pa.  St.  102.  4o  Grundy  v.   Janesville.   84    Wis. 

snGoodson    v.     Sunbury.    etc.,    75  574;   54  N.  W.  Rep.   1085. 
L.  T.  Rep.  251;  60  J.  P.  585;  Scott 


INJURIES    CAUSED    BY    OIL    A:SD    GAS  NEGLIGENCE.       789 

where  there  is  no  evidence  that  the  township  authorities  ever 
knew  there  was  a  gas  pipe  in  such  highway.'*^  Where  a  horse 
was  frightened  bj  reason  of  the  noise  caused  bv  a  well,  and  the 
wagon  it  was  drawing  came  in  contact  with  a  long  exposed  gas 
pijD€  in  the  highway,  occasioning  an  injury  thereby  to  the  plain- 
tiff, the  gas  company  owning  it  was  held  liable/"  If  a  gas  com- 
pany so  imj>erfectly  fill  up  a  trench  in  which  it  has  laid  its  gas 
main  that  the  filling  subsides  and  leaves  a  hole  in  the  street,  it 
will  be  liable  to  any  one,  without  fault,  falling  into  the  hole  and 
injured  thereby,  even  though  the  work  had  been  approved  and 
accepted  by  local  authorities.  It  is  not  only  the  duty  of  the 
company  to  put  the  street  in  as  good  condition  as  it  was  before, 
but  also  to  exercise  a  careful  foresight  in  order  to  prevent  any 
injury_  afterwards  which  might  be  occasioned  to  the  work  by 
storms  and  rainfalls,  and  which  would  render  the  work  danger- 
ous to  travelers. ^^  If  the  gas  company  open  a  hole  in  the  side- 
Avalk  necessary  to  the  prosecution  of  its  work,  it  must  see  that 
it  is  properly  protected.** 

§683.     Imperfectly  constructed  g^s  building. 

A  person  was  employed  as  a  master  machinist.  A  fire  oc- 
curred in  the  gas  room  of  the  company ;  and  he  was  directed  by 
a  superior  to  break  down  a  door.  He  did  as  directed ;  but  a 
wall  fell  on  him  and  killed  him.  It  was  claimed  that  several 
times  the  roof  had  burned  off  the  building,  and  after  the  last 
fire  an  iron  roof  supix)rted  by  heavy  girders  had  been  put  on 
the  building.      It  was  also  claimed  that  the  previous  fires  had 

41  Otto  Township  v.  Wolf.  106  Pa.  73  JNIo.  219;  11  Rep.  675,  reversing 
St.   608.  6   Mo.  App.   85. 

42  Potter  V.  Natural  Gas  Co.,  183  An  agreement  that  the  trench 
Pa.  St.  575;  39  Atl.  Rep.  7.  shall  be  "well  and  sufficiently  closed 

43  Dillon  V.  Washington  Gaslight  up "  and  the  land  and  premises 
Co,,  1  MacArthur  (D.  C.)  626;  "made  good"  is  not  complied  with 
Robinson  v.  Imperial,  etc.,  Co.,  15  where  the  soil  covering  the  pipes 
Gas  J.  883;  Weld  v.  Gaslight  Co.,  is  in  places  from  two  to  two  and 
1  Starkie  150;  Chisholm  v.  Halifax,  a  half  feet  above  the  original  level. 
29  Nov.  Sco.  402.  Chisholm  v.  Halifax,  supra. 

44  Buesching  v.  St.  Louis,  etc.,  Co., 


790  OIL    AND    GAS. 

SO  weakened  the  wall  that  it  was  not  able  to  support  the  iron 
roof  and  girders ;  and  that  these  girders  expanded  because  of 
the  fire,  and  the  gable  being  weak,  it  all  tended  to  cause  the 
wall  to  fall.  It  was  held  that  as  the  complaint  did  not  show 
the  deceased  was  not  acquainted  with  all  the  defects  and  risks, 
or  had  been  lately  employed,  or  that  the  wall  became  weak 
during  his  employment  or  he  did  not  have  charge  of  that  par- 
ticular part  of  the  building,  and  consequently  out  of  his  line  of 
duty',  or  the  gas  room  was  unfit  for  the  purpose  for  which  it 
was  constructed,  the  complaint  was  deficient.*^ 

§684.     Exploding  tank  injuring  servant. 

A  railroad  company  had  its  own  gas  plant,  to  manufacture 
gas  it  used.  The  person  who  was  killed  by  it  exploding  was 
employed  by  the  company  before  it  was  l^uilt.  The  railroad 
company  organized  a  voluntary  fire  department  composed  of  its 
employees ;  and  the  person  killed  was  its  chief.  Xo  one  was 
required  to  join  the  fire  company.  The  object  of  its  formation 
was  to  extinguish  fires  breaking  out  in  the  railroad  shops.  The 
railroad  company  located  the  water  plugs  and  pijDcs,  furnished 
the  fire  apparatus,  permitted  the  persons  composing  the  fire  com- 
pany to  drill  frequently  during  working  hours,  during  which 
hours  they  were  paid  their  regular  wages.  Once  a  week  the 
chief  was  allowed  an  hour  to  inspect  the  shops  as  a  precaution 
against  fire.  The  chief  was  killed  by  an  explosion  of  the  gas 
plant  when  endeavoring  to  put  out  a  fire  in  the  shops.  He  had 
nothing  to  do  with  the  manufacture  of  the  gas,  being  employed 
only  as  a  machinist,  although  he  frequently  repaired  the  gas 
plant.  It  was  claimed  that  the  railroad  company  had  negli- 
gently used  a  tar  roof  when  it  should  have  used  a  slate  or  a 
"letal  one;  and  that  the  gas  tanks  were  too  close  to  the  fire  in 
he  gas  retorts.  The  gas  tanks  were  twelve  feet  from  the  gas 
retorts,  and  were  separated  by  a  brick  wall.     ]\retal  roofs  were 

45  Allen  V.  Augusta  Factory,  82  as  to  fall  of  a  gate.  Allen  v.  New 
Ga.  76;  8  S.  E.  Rep.  68:  Hulett  v.  Gas  Co.,  L.  R.  1  Exch.  Div.  251;  45 
Pudsey  Gas  Co.,  28  Gas  J.  6(5^.     Sre       L.  J.  Exch.  668. 


INJURIES    CAUSED    BY    OIL    AND    GAS NEGLIGENCE.      791 

generally  in  use  on  such  buildings,  where  roofs  were 
used.  On  the  ground  that  the  negligence  of  the  railroad 
company  must  have  been  a  reckless  indifference  to  the  safety 
of  the  public  to  render  it  liable,  or  an  intentional  failure  to  per- 
form a  manifest  duty,  the  company  was  held  not  liable.*'^ 

§685.     Servant  entitled  to  safe  place  in  which  to  work. 

A  servant  is  entitled  to  a  safe  place  in  which  to  work.  Thus 
where  a  contractor  had  one  "  gang  "  of  men  digging  a  trench 
and  another  laying  pipe  in  the  same  trench ;  and  a  servant  with 
the  latter  gang  was  assured  by  the  master  that  the  trench  was 
a  safe  place  in  which  to  work,  and  there  was  nothing  to  indicate 
that  it  was  unsafe,  the  master  was  held  liable  to  the  servant  for 
injuries  he  received  by  the  walls  of  the  trench  caving  in  upon 
him.'*^  A  servant  of  a  gas  company  dug  a  trench  in  front  of  a 
boiler,  and  left  it  in  an  unsafe  condition.  Another  servant  who 
fired  the  furnace  under  the  boiler,  and  who  in  so  doing  had  to 
work  near  the  trench,  was  injured  because  of  its  unsafe  condi- 
tion. It  was  held  that  as  the  injured  servant  assumed  only 
such  risks  as  were  incident  to  his  employment,  and  such  as  were 
apparent  and  the  ordinary  risks,  he  did  not  assume  the  risk  of 
the  hole  in  front  of  the  boiler,  and  was  entitled  to  recover.*^ 
It  was  held  differently  where  a  trench  was  dug  by  a  city,  which 
the  master  had  no  control  over  and  never  saw,  and  the  city  or- 
dered the  master  to  remove  some  gas  pipe  from  the  trench,  and 
to  comply  with  the  order  sent  the  servant  to  do  so,  and  in  doing 
so  the  earth  caved  in  and  injured  him.*''  A  servant  of  a  gas 
company  assisted  in  raising  a  gas  tank  over  a  building.  In 
doing  so  some  boards  were  left  on  a  scaffold  built  along  the  wall 
of  the  building  over  which  the  tank  was  to  be  raised.  The 
boards  were  loose  and  in  an  unsafe  condition,  and  fell  because 

46  Collins  V.  Cincinnati,  etc.,  Co.,  48  Frye  v.  Bath  Gas,  etc.,  Co.,  94 
13  Ky.  Rep.  670;   18  S.  W.  Rep.  11.  Me.  17;  46  Atl.  Rep.  804. 

47  Schmidt  v.  Gillen,  41  N.  Y.  49  Hughes  v.  Maiden,  etc.,  Co., 
App.  Div.  302;  58  N.  Y.  Supp.  458;  168  Mass.  397;  47  N.  E.  Rep.  125. 
Baird  v.  Reilly,  92  Fed.  Rep.  884. 


792  oil.    AND    GAS. 

the  foreman  failed  to  steady  the  tank  which  shook  them.  They 
fell  and  injured  the  servant;  and  it  was  held  that  the  com- 
pany was  iiahle,  on  the  theory  that  the  master  was  Ixjiind  to 
furnish  the  servant  a  safe  place  in  which  to  work,  and  was 
bound  to  remove  the  boards  that  caused  the  injury.^" 

§686.     Servant  injured  by  use  of  defective  ladder. 

A  servant  of  a  gas  company  was  directed  to  remove  some 
boards  which  were  over  a  gas  generator.  To  do  this  he  had  to 
use  a  ladder;  and  he  used  one  that  was  shorter  than  the  one 
he  was  directed  to  use.  He  ascended  to  the  place  directed,  the 
ladder  was  too  short  to  reach  it,  but  he  used  other  means.  He 
was  overcome  with  gas  that  had  accumulated  at  the  place  to 
which  he  Avas  directed  to  go  and  fell,  receiving  severe  injuries 
from  Avhich  he  died.  In  an  action  brought^o  recover  for  his 
death  on  the  ground  that  the  place  to  which  he  was  sent  was 
a  dangerous  one,  it  was  held  to  be  immaterial  whether  the  lad- 
der was  too  short  or  not,  for  it  had  nothing  to  do  with  the  fall ; 
because  the  fall  was  caused  by  the  inhalation  of  poisonous  gases, 
and  it  could  make  no  difference  how^  he  made  his  ascent. ^^  It 
was  the  duty  of  a  servant  to  light  the  lamps  in  front  of  his  mas- 
ter's residence,  and  to  do  this  he  had  to  use  a  ladder.  The 
ladder  was  insecure  because  of  the  absence  of  spikes,  and  the 
servant  told  his  foreman  of  that  fact,  who  promised  to  put  in 
proper  spikes,  but  did  not  do  it,  and  on  being  told  a  second  time, 
made  the  same  promise.  The  defect  in  the  ladder  continued, 
and  thc'  servant  fell  from  it  one  stormy  night  and  was  injured. 
The  fall  was  occasioned  by  the  absence  of  the  spikes.  It  was 
held  that  the  master  was  not  liable,  for  the  reason  that  the  work 
and  use  made  of  the  ladder  was  only  ordinary  labor;  and  the 
servant  was  as  familiar  with  the  defects  as  his  master.^'     A 

50  Bagley  v.  Consolidated  Gas  Co.,  52  Marsh  v.  Chickeving.  101  N.  Y. 
13  N.  Y.  Misc.  Rep.  6;  34  N.  Y.  396^  5  N.  E.  Rep.  56.^  The  court 
Siipp.   187.  said  that  the  rule  applicable  to  com- 

51  Citizens'   Gaslight,   etc.,   Co.   v.  plicated  machinery  did  not  apply. 
O'Brien,  118  111.  174;   8  K  E.  Rep. 

310. 


INJURIES    CAUSED    BY    OIL    AND    GAS  NEGLIGENCE.       793 

servant  of  a  gas  company  had  for  several  years  been  employed 
to  make  general  repairs.  By  one  in  authority  he  was  directed 
to  clean  a  condenser.  To  get  to  the  place  to  do  the  cleaning  he 
had  to  use  a  ladder,  and  used  one  furnished  by  the  company. 
The  ladder  had  no  spikes  in  the  end  resting  on  the  floor,  and  the 
place  where  it  rested  was  smeared  with  grease  and  oil.  When 
the  servant  was  ascending,  it  slip]3ed,  he  was  thrown  to  the 
ground,  and  injured.  He  claimed  the  injury  was  caused  by  the 
absence  of  the  spikes.  The  servant,  some  time  before  the  acci- 
dent, had  told  the  officers  of  the  gas  company  that  the  ladder 
was  unsafe.  It  was  held  that  the  attempt  to  ascend  the  ladder 
under  the  circumstances  was  negligence,  if  not  recklessness,  and 
a  bar  to  a  recovery ;  for  the  servant  knew  the  facts  as  well  as 
the  master.^^ 

53  Corcoran  v.  Milwaukee,  etc., 
Co.,  81  Wis.  191;  51  N.  W.  Rep. 
328. 


CHAPTER  XXXI. 

INSURANCE. 

§687.  Extent  of  discussion. 

§688.  Conflict  between  rider  or  written  part  and  printed  part  of  policy. 

§689.  "  On  the  premises." 

§690.  "  Contiguous  "   to   insured   building. 

§691.  Oil  for  illumination. 

§692.  Time  of  filling  lamps. 

§693.  Failure  to  extinguish  lamps. 

§694.  The  oil  prohibited. 

§695.  Prohibited  user  not  occasioning  loss. 

§696.  Owner  himself  must  violate  terms  of  policy.— ^'Q'enant. 

§697.  Explosions. —  No  clause  of  exemption. 

§698.  Explosions  of  oil  or  gas. 

§699.  Failure  to  disclose  use  of  oil. 

§700.  Warranty. —  Hazard  not  increased. 

§701.  Particular  use  allowed. 

§702.  Extent  of  prohibited  use. 

§703.  Occasional  use  of  hazardous  articles. 

§704.  Increase  of  risk. 

§70.5.  Proof  of  custom  or  the  usual  practice. 

§706.  Implied  consent  to  prohibited  use. —  Custom. 

§707.  "Storing." — "Keeping." 

§708.  Store. 

§709.  Grocery. 

§710.  Watchmaker. 

§711.  Furniture  store. — Wagonshop. 

§712.  Factory. 

§713.  Drug  store. 

§714.  Laundry. 

§715.  Patent  leather  factory. 

§716.  Painter. —  Paintshop  or  factory. 

§717.  Torch  to  remove  paint  from  house. 

§718.  Cleaning  clothes. —  Destroying  vermin. 

§719.  Cleaning  or  lubricating  machinery. 

§720.  Waiver  by  knowledge  or  acquiescence  in  use  of  building. 

§721.  Waiver  by  knowledge  or  acquiescenc?'  in  use  of  building  —  Continued, 

§722.  Waiver  by  receiving  premium  Avith  knowledge  of  prohibited  user. 

§723.  Waiver  by  adjusting  loss  or  accepting  proof  without  objection, 

794 


§724.     Insurance   company's   right  of   action   to   recover   damages. —  Effect 

of  insurance  on  right  of  action. 
§725.     Gas  company  causing  fire  liable  to  insurance  company. 
§726.     Inhaling  gas,  accident  or  life  insurance  policy. 

§687.     Extent  of  discussion. 

Necessarily,  the  extent  of  the  discussion  of  the  subject  mat- 
ter of  this  chapter  must  be  brief,  and  only  insurance  cases  be 
cited.  Little,  if  any,  methodical  order  can  be  followed.  Usu- 
ally litigation  concerning  the  use  or  storage  of  oil  in  the  insured 
building  arises  oA^er  the  difference  between  the  printed  terms 
and  the  written  clauses  of  the  policy,  or  because  of  the  conflict 
between  the  "'  rider  "  and  the  terms  of  the  policy  proper.  The 
custom  of  trade,  too,  must  be  taken  into  consideration,  for  it 
has  a  very  decided  bearing  upon  the  interpretation  of  fire  in- 
surance policies. 

§688.     Conflict  between  rider  or  written  part  and  printed  part  of 
policy. 

A  "  rider  "  is  always  something  attached  to  a  policy,  and  is 
an  addition  to  it,  either  by  expressly  changing  the  terms  of 
the  policy  or  adding  thereto.  It  is  regarded  as  the  last  ex- 
pression of  the  parties  to  the  policy.  In  case  of  a  conflict  be- 
tween the  language  of  the  policy  and  rider,  the  latter  will 
control ;  just  as  in  case  there  is  a  conflict  between  the  printed 
jxjrtions  of  a  policy  and  written  words  inserted  in  it,  the  latter 
will  control,  if  the  two  cannot  be  construed  together.^ 

§689.     "  On  the  premises." 

It  is  sometimes  difficult  to  determine  whether  or  not  the 
prohibited  article  has  been  kept  on  the   premises  within  the 

1  Yoch  V.  Home,  etc.,  Ins.  Co.,  HI  Min.    409;     52    N.    W.    Rep.    906; 

Cal.  503;   44  Pac.  Rep.  189;    34  L.  Phoenix   Ins.    Co.    v.    Flemming.    65 

R.  A.  857;   Lancaster  Fire  Ins.  Co.  Ark.    54;    44    S.    W.    Rep.   464;    39 

V.  Lenheim,  89  Pa.  St.  497;  33  Am.  L.   R.   A.    789;    Faust   v.   American 

Rep.  778;  Gunther  y.  Liverpool,  etc..  Fire  Ins.  Co.,  91  Wis.  158;  64  X.  W. 

Ins.  Co.,  85  Fed.  Rep.   846;   Russell  Rep.  883;  30  L.  R.  A.  783. 
V.  Manufacturers',  etc.,  Ins.  Co.,  50 


796  OIL    AND    GAS. 

meaning  of  a  provision  prohibiting  the  keeping  of  such  an  ar- 
ticle "  on  the  premises,"  It  is  clear  that  such  a  phrase  cannot 
be  so  extended  as  to  include  a  building  other  than  the  one  cov- 
ered by  the  policy,  so  that  keeping  the  prohibited  article  in 
such  building  will  not  avoid  the  policy."  The  keeping  of  gas- 
oline in  the  yard  twelve  feet  from  the  insured  building  is  not 
f.  breach  of  a  condition  of  a  policy  which  prohibits  the  storage 
or  use  of  gasoline  in  or  on  the  premises.'  Nor  is  such  a  ]X)licy 
avoided  by  the  storage  of  the  gasoline  in  a  tank  undergrijund 
thirty-five  feet  from  the  insured  building,  where  by  means  of 
certain  machinery  it  is  vaporized  and  the  vapor  carried  into 
the  building  by  a  pipe  and  used  for  lighting.*  A  policy  placed 
on  a  "  three-story  brick  gravel  roof  hotel  building,  occupied  by 
the  assured,"  and  known  as  the  Tremont  Hotel,  situated  on  lots 
9  and  12  gave  permission  "  to  light  premises  with  gasoline," 
but  provided  that  "  no  gasoline  should  be  stored  on  the  prem- 
ises." It  was  held  that  the  word  "  premises  "  meant  the  build- 
ing insured,  rnd  the  insured  was  not  prohibited  from  depositing 
gasoline  for  the  use  of  the  hotel,  in  reasonable  quantities,  on  his 
own  lots  outside  the  hotel.""^  A  policy  on  a  specifically  described 
steam  flour  mill  and  machinery  prohibited  the  keeping  of  petro- 
leum on  "  the  premises."  The  insured  kept  a  barrel  of  |D€tro- 
leum  in  an  engine  house  adjoining,  but  not  included  in  the  speci- 
fic description  of  the  premises.  The  fire  that  destroyed  the  mill 
originated  in  it  and  not  in  the  engine  room.  It  was  held  that 
the  petroleum  had  not  been  kept  on  "  the  premises,"  and  that 
the  policy  was  not  avoided.''  The  use  of  naphtlia  for  four 
weeks  to  burn  off  the  paint  on  the  outside  of  a  house,  using  it 
within  a  few  inches  of  the  outer  wall,  is  the  bringing  of  naphtha 

2  Sperry     v.     Insurance     Co.,     22  Commerce  Ins.   Co.,   6f)   N.   Y.    191; 

Fed.    Rep.    .516.      See   Hanover   Fire  2,5   Am.   Rep.   168,  affirming  7  Hun 

Ins.  Co.  V.  Stodciarcl,  52  Neb.   745 ;  455. 

7.3  N.  W.  Rep.  291.  s  Northwestern,    etc.,    Ins.    Co.   v. 

s  La  Force  v.  Williams,  etc.,  Ins.  f4ermania    Fire    Ins.    Co.,    40    Wis. 

Co..  4.3  Mo.  App.  51S.  446. 

4  Queen    Ins.    Co.    v.    Sinclair.    1  « Carlin  v.   Western,  etc.,   Co.,   57 

Ohio   Cir.    Ct.    Rep.    496;    Ai'kell    v.  Md.  515;   40  Am.  Rep.  440. 


IlfSURANCE.  797 

"  on  the  premises."  ^  Permission  was  given,  to  remove  insured 
goods  to  "  the  three-storj  .  .  .  building  occupied  as  a 
.  .  .  store,  situated  at  Xo.  72  E.  Street."  Just  back  of  the 
three-story  building  was  a  one-story  addition  which  opened  into 
it  by  a  door  and  window,  which  was  included  under  the  street 
number  72.  For  a  long  time  previous  to  the  granting  of  the 
permission  the  addition  was  occupied  as  a  part  of  the  store, 
and  in  it  some  of  the  insured  goods  were  put.  It  was  held 
that  this  addition  was  such  a  part  of  the  premises  as  to  prohibit 
the  keeping  of  gasoline  in  it.*"  In  this  instance  the  gasoline 
was  kept  and  used  in  a  gasoline  stove  in  an  upstairs  room 
which  had  no  connection  with  the  store,  and  was  reached  by  an 
outside  stairw^ay.  A  policy  provided  that  it  should  be  void  if 
illuminating  gas  or  vapor  should  be  generated  in  the  building 
or  adjacent  thereto,  to  use  therein.  The  insured  manufactured 
a  gaseous  fluid  from  gasoline  and  other  ingredients,  which  was 
kept  in  a  shed  separated  from  the  insured  building,  and  used 
in  a  lamp  for  lighting,  a  portion  of  it  being  kept  on  a  shelf  in 
the  back  part  of  such  building.  The  insured  had  used  all  the 
fluid  several  days  before  the  fire  occurred,  and  was  not  using  it 
at  the  time  of  the  fire.  It  was  held  that  the  facts  warranted 
a  finding  that  no  illuminating  gas  was  generated  in  the  building 
for  use  therein,*  Where  the  policy  prohibited  the  using  o 
depositing  of  oil  on  the  premises,  the  policy  covering  the  house 
only ;  and  the  gasoline  was  kept  in  the  bam  and  brought  into 
the  house  as  needed  and  there  used,  it  was  held  that  the  policy 
was  thereby  avoided,'' 

§690,     "  Contiguous  "  tovinsured  building. 

A  ]X)licy  prohibited  "  the  generating  or  evar»orating  within 
the  building,  or  contiguous  thereto,  of  any  substance  for  a  burn- 

'  First   Congregational    Church  v.  s  Phoenix  Ins.  Co.  v.  Shearman,  17 

Holyoke,    etc.,    Ins.   Co.,    158   Mass.  Tex.  Civ.  App.  456;  43  S.  W.  Rep. 

475;  33  N.  E.  Rep.  572;  35  Am.  St.  930.    1063. 

Rep.  508;    19  L.   R.  A.  587.  a  Pennsylvania  Ins.  Co.  v.  Faires. 

*7Bover    v.    Grand    Rapids    Fire  13    Tex.   Civ.    App.    Ill:    35    S.    W. 

Ins.  Co..   124  Mich.  455;   83  N.  W.  Rep.    55. 
Rep.    124. 


798  OIL    AND    GAS. 

ing  gas,  or  the  use  of  gasoline  for  lighting."  After  the  policy 
was  issued,  the  insured  constructed  works  fifty  feet  from  the 
building  for  the  manufacture  of  gas  from  gasoline ;  and  the 
gas  when  manufactured  was  conducted  to  the  building  by  pipes. 
It  was  held  that  the  policy  was  not  avoided,  for  the  gas  works 
were  not  "  contiguous  "  to  the  building,  within  the  meaning  of 
the  clause  quoted." 

§691,     Oil  for  illumination. 

The  prohibition  against  the  use  of  enumerated  oils  upon  the 
premises  will  not,  as  a  rule,  prohibit  their  use  for  necessary 
illuminating  purposes.  Such  was  held  to  be  the  case  of  the  use 
of  naphtha, ^^  and  of  kerosene.^"  Wliere  a  clause  in  a  policy 
prohibited  the  storing  or  use  of  "  petroleum,  rock  or  earth  "  oil 
on  the  premises,  and  another  clause  prohibited  the  lighting  of 
the  premises  by  means  of  certain  inflammable  substances,  not 
including  kerosene,  lighting  the  building  with  kerosene,  and 
keeping  on  hand  in  it  a  reasonable  quantity  for  that  purpose, 
was  held  not  to  avoid  the  policy.^^ 

§692.     Time  of  filling  lamps. 

Where  the  use  of  oil  is  expressly  permitted  for  illuminating 
purposes,  a  clause  is  frequently  inserted  providing  when  the 
lamps  must  be  filled,  almost  universally  requiring  that  work  to 
be  performed  in  the  day  time.  A  violation  of  such  a  provision 
avoids  the  policy.  Thus  where  a  policy  required  the  lamps  "  to 
be  filled  and  trimmed  by  daylight,"  it  was  held  that  the  policy 
was  avoided  by  the  drawing  on  the  premises  of  carbon  oil  to  loan 
to  a  neighbor  about  dusk,  near  a  lighted  lantern,  though  not 

ifArkell    v.    Commerce    Ins.    Co.,  North  British,  etc.,  Co.,  8  Daly  471 ; 

69   N.   Y.    191;    25   Am.   Rep.    168;  Hall  v.  Insurance  Co.,  58  N.  Y.  292; 

affirming  7  Hun  455.  17  Am.  Rep.  255;  Bennett  v.  North 

11  Putnam  v.  Commonwealth  Ins.  British,  etc.,  Ins.  Co.,  81  N.  Y.  273; 
Co.,  4  Fed.   Rep.  753.  37  Am.  Rep.  501. 

12  Jones  V.  Howard  Ins.  Co.,   117  1 3  Buchanan     v.     Exchange     Fire 
N.  Y.   103;   22  N.  E.  Rep.   578;    10  Ins.  Co.,  61  N.  Y.  26. 

N.    Y.    St.    Rep.    120;    Bennett    v. 


IXSURAXCE.  799 

for  the  purpose  of  filling  lamps,  by  any  person  acting  for  the 
insured,  whereby  a  fire  was  caused,  the  policy  only  permitting 
carbon  oil  to  be  used  on  the  premises  for  lighting  purposes.^* 
But  where  a  policy  provided  that  the  insurer  should  not  be 
liable  for  a  loss  caused  by  the  use  of  kerosene,  unless  permitted 
on  the  policy  in  writing,  it  was  held  that  a  recovery  on  the 
policy  could  not  be  defeated  on  the  ground  that  lamps  were  filled 
with  kerosene  in  the  evening,  and  by  artificial  light,  unless  it 
w^as  shown  that  the  loss  was  occasioned  thereby/^  So  where  the 
policy  prohibited  the  use  of  camphene,  spirit  gas,  burning  fluid, 
or  chemical  oils,  but  permitted  the  use  of  refined  coal  oil,  kero- 
sene, or  other  carbon  oil  for  lights,  if  drawn  and  the  lamps 
filled  by  daylight,  it  was  held  that  it  was  not  avoided  by  using 
lard  oil  and  candles,  and  filling  the  lamps  with  it  at  night/'' 

§693.     Failure  to  extinguish  lamps. 

A  policy  granted  the  privilege  of  using  kerosene  oil  for  lights 
in  the  day  time,  and  provided  that  they  should  be  extinguished 
at  the  close  of  the  day's  business.  It  was  held  that  the  mere 
fact  that  at  some  time  during  the  life  of  the  policy  the  insured 
failed  to  extinguish  the  lamjjs  at  the  close  of  the  business  of 
the  day  could  not  prevent  a  recovery,  unless  the  risk  by  such 
failure  was  increased ;  for  the  reason  that  the  doing  of  an  act 
which  the  policy  prohibits  for  the  manifest  purpose  of  prevent- 
ing an  increase  of  the  risk  will  not  work  a  forfeiture.^'^ 

§694.     The  oil  prohibited. 

If  a  particular  kind  of  oil  is  prohibited,  then  the  keeping  of 
another  kind  will  not  avoid  the  policy.  Thus  prohibiting  the 
use  of  camphene,  spirit  gas,  burning  fluid,  or  chemical  oils,  but 

14  Gunther  v.  Liverpool,  etc.,  Ins.  is  Jones  v.  Howard  Ins.  Co.,  117 

Co..  134  U.  S.  110;  10  Sup.  Ct.  Rep.       N.  Y.  10.3;  22  N.  E.  Rep.  578. 
448 ;     Liverpool,    etc.,    Ins.    Co.    v.  le  Carlin  v.  Western,  etc.,  Co.,  57 

Gimther.    116    U.    S.    113;    34   Fed.       Md.   515;  40  Am.  Rep.  440. 
Rep.  501.  i'^  Fireman's  Ins.  Co.  v.  Cecil,   12 

Ky.  L.  Rep.  48,  259. 


800  OIL    AND    GAS. 

permitting-  the  use  of  refined  coal  oil,  kerosene,  or  other  carbon 
oil  for  lights,  if  drawn  and  the  lamps  be  filled  bv  daylight,  will 
not  prohibit  the  use  of  lard  oil  and  candles,  even  thongh  the 
lamps  be  filled  at  night. ^^  But  a  clause  prohibiting  the  keeping 
of  petroleum  will  iwohibit  the  keeping  of  gasoline,  for  gasoline 
is  a  product  of  petroleum,  though  it  be  not  named  in  the  policy 
as  a  prohibited  article.^^  In  the  absence  of  proof  a  court  cannot 
hold  kerosene  oil  to  be  a  ''  burning  fluid  or  chemical  oil."  "^ 
"  French  Electric  Fluid  "  has  been  held  to  be  the  equivalent 
of  benzine."^  Whether  benzine  was  a  "  burning  fluid  or  chem- 
ical oil  "  within  the  meaning  of  a  policy  on  a  distillery  forbid- 
ding the  assured  to  keep  or  have  "  camphene,  spirit  gas,  or  any 
burning  fluid  or  chemical  oils  "  on  the  premises  was  held  to  be  a 
question  of  fact."-  A  policy  provided  that  "  camphene,  spirit 
gas,  naphtha,  benzine  or  benzole,  chemical,  crude  or  refined 
coal  or  earth  oils  "  should  not  be  kept  or  used  on  the  premises, 
l)ut  this  was  held  not  to  prevent  the  use  of  kerosene  oil,  the 
phrase  "  crude  or  refined  coal  or  earth  oils  "  being  limited  by 
the  remaining  words  in  the  sentence  in  which  they  were  used 
so  as  not  to  prohibit  the  use  of  kerosene."^  Where  an  assured, 
thinking  he  was  using  a  mixture  of  spenn  and  lard  oils,  for 
lubricating  purposes,  when  in  fact  he  was  using  a  compound  of 
those  oils  with  petroleum,  Avhich  was  equally  as  safe,  it  was  held 
that  there  was  no  breach  of  a  condition  of  the  policy  that  only 
sperm  and  lard  oils  should  be  used.^* 

18  Carlin  v.  Western,  etc.,  Co.,  57  24  Copp  v.  Grerman- American  Ins. 
Md.  515;  40  Am.  Rep.  440.                      Co.,  51  Wis.  637;  8  N.  W.  Rep.  127, 

19  Kings  County  Fire  Ins.  Co.  v.       616. 

Swigert,  11  111.  App.  590».  A  prohibition  against  the  keeping 

20  Mark  v.  National  Fire  Ins.  Co.,  of  nitroglycerine  was  held  to  ex- 
24   Hun   565.  elude    giant    powder,    the    evidence 

21  Phoenix  Ins.  Co.  v.  Shearman,  showing  that  the  latter  was  almost 
17  Tex.  Civ.  App.  456;  43  S.  W.  wholly  composed  of  the  former. 
Rep.    930,    1063.  Sperry  v.   Springfield,  etc.,  Ins.  Co., 

22Mears  v.  Humboldt  Ins.  Co.,  a6  Fed.  Rep.  234;  15  Ins.  L.  Jr. 
92  Pa.  St.  15;  37  Am.  Rep.  647.  270. 

23  Morse  v.  Buffalo,  etc.,  Ins.    Co., 
30  Wis.  534;   11  Am.  Rep.  587. 


IXSURAXCE.  801 

§695.     Prohibited  user  not  occasioning  loss. 

Whether  or  not  the  user  of  the  prohibited  article  occasioned 
the  loss  is  an  immaterial  question ;  for  if  the  article  be  used 
contrary  to  the  terms  of  the  }X)licy,  it  will  avoid  such  policy, 
although  the  loss  be  occasioned  by  another  and  distinct  cause. "^ 
But  where  a  policy  provided  that  the  insurer  "  will  not  be  liable 
under  or  by  virtue  of  this  policy  for  loss  or  damage  caused  by 
the  working  of  mechanics  .  .  .  nor  for  the  use  of  kerosene 
unless  |">ermitted  hereon  in  writing " ;  and  it  was 
claimed  that  the  insured  violated  the  ]X)licy  by  filling  his  lamps 
with  kerosene  in  the  evenings,  by  artificial  light ;  it  was  held 
that  as  the  fire  and  the  consequent  loss  did  not  have  its  origin 
from  the  use  of  the  kerosene  the  insurer  was  liable."*'  So  it 
has  been  held  that  if  gasoline  was  brought  upon  the  premises 
contrary  to  the  prohibitory  clause  of  the  policy,  but  it  was  not 
there  when  the  loss  occurred,  the  policy  was  not  thereby  avoided, 
although  if  it  had  been  there  when  the  fire  occurred,  the  policy 
would  have  been  avoided."'  So  where  kerosene  could  only  be 
used  for  lighting  purposes,  but  it  was  used  for  fuel  purposes,  the 
company  was  held  liable,  the  use  of  the  kerosene  not  causing 
the  fire.-" 

25  Pennsylvania    Fire   Ins.    Co.   v.  26  .Jones  v.  Howard  Ins.  Co..   117 

Faires,   13  Tex.    Civ.   App.    Ill;    35  N.  Y.  103;   22  X.  E.  Rep.  .578. 

S.  W.  Hep.  55;  Williams  v.  People's  27  Traders'  Ins.  Co.  v.  Catlin.  163 

Fire  Ins.  Co.,  57  N.  Y.  274;  Faulk-  111.  256;  45  N.  E.  Rep.  255;  59  111. 

er  V.  Central  Fire  Ins.  Co.,    I  Kerr  App.    162.     See   New   England,   etc., 

(N.  B.)   279;  Trustees,  etc..  v.  Wil-  Ins.   Co.   v.   Wetmore.    32    111.   221; 

liamson,   26  Pa.   St.    196 ;    Commer-  Germania   Fire  Ins.   Co.  v.  Klewer, 

cial    Ins.    Co.    v.   Mehlman.    48    111.  129    111.    599;    22   X.   E.   Rep.   489; 

313;    Couch  v.  Rochester,   etc.,   Ins.  Phoenix,   etc.,   Co.   v.   Munger    (Tex. 

Co.,    25   Hun  469;    Duncan   v.    Sun  Civ.  App,),  49  S.  W.  Rep.  271. 

Fire  Ins.   Co.,  6  Wend.  488;    Diehl  See  the  rather  remarkable  case  of 

V.  Adams  County,  etc.,  Ins.  Co.,  58  Traders'   Ins.   Co.   v.   Race,   142   111. 

Pa.  St.  443;  Murdock  v.  Chenango,  338;  31  N.  E.  Rep.  392. 

etc.,  Ins.  Co..  2  X.  Y.  210;  White  v.  28  Snyder  v.  Dwelling  House  Ins. 

Western,  etc.,  Co.   (Pa.),  6  Atl.  Rep.  Co..  59  X.  J.  L.  544;   3/  All.  Rep. 

113.  1022,  reversing  34  Atl.  Rep.  931. 


802  OIL    AND    GAS. 

§696.     Owner  himself  must  violate  terms  of  policy. —  Tenant. 

The  rule  is,  to  avoid  a  policy,  the  insured  himself  must  have 
done  the  act  prohibited  by  it,  or,  at  least,  suffered  others  to  do 
it.  Thus  where  workmen  in  a  factory  used  friction  matches 
to  some  extent  contrary  to  orders  of  the  insured,  the  court  in- 
structed the  jury  that  the  use  of  matches  contemplated  by  the 
policy  to  render  it  void  must  have  been  a  use  by  authority,  ex- 
press or  implied,  of  the  insured  ;  that  what  was  going  on  in  the 
premises  he  was  bound  to  know ;  that  if  he  knew,  or  as  a  prudent 
man  ought  to  have  known,  that  matches  were  used,  then  his 
order  would  not  help  him ;  and  that  the  use  meant  was  a  known 
and  permitted  use.  These  instructions  were  hold  to  be  cor- 
rect."'' But  if  a  person  occupying  the  premises  with  the  con- 
sent of  the  insured,  as  his  tenant,  for  instance,  violates  the 
prohibitory  clause  of  the  policy,  his  act  is  the  act  of  the  in- 
sured."°  The  fact  that  the  breach  of  the  policy  occurred  through 
the  orders  of  the  husband  and  general  manager  of  the  tenant 
of  the  assured,  although  he  Avas  not  acting  by  express  or  implied 
authority  from  such  insured,  was  held  not  to  relieve  him  from 
the  responsibility  for  the  breach  of  the  prohibitory  condition.^^ 

§697.     Explosions. —  No  clause  of  exemption. 

If  there  be  no  clause  in  the  policy  exempting  the  insurer  from 
loss  occasioned  by  an  explosion,  then  such  insurer  will  be  liable 
for  the  loss.  Thus  where  a  jwlicy  had  no  such  exempting 
clause,  and  a  match  was  applied  to  a  keg  of  powder  which  ex- 
ploded, threw  off  the  roof  of  the  insured  building,   and  did 

29  Farmer,  etc.,  Ins.  Co.,  v.  Sim-  380;  54  N.  Y.  Supp.  230  (landlord 
mons,  30  Pa.  St.  299.  did  not  know  tenant  was  using  gaso- 

30  German  Fire  Ins.  Co.  v.  Board,  line  for  a  light)  ;  Adair  v.  Southern 
54  Kan.  732;  39  Pac.  Rep.  697;  etc.,  Ins.  Co.,  107  Ga.  297;  33  S.  E. 
Kelly   V.    Worcester,    etc.,    Ins.    Co.,  Rep.   78. 

97  Mass.  284;  5  Benn.  Fire  Ins.  Co.,  3i  Liverpool,  etc.,  Ins.  Co.  v.  Gun- 

122;   Duncan  v.  Sun  Fire  Ins.  Co.,  *.  ther,  116  U.  S.  113;  6  Sup.  Ct.  Rep. 
6  Wend.  488;   Badger  v.  Platts,  68       306;   Gunther  v.  Liverpool  Ins.  Co., 
N.  H.  222 ;  44  Atl.  Rep.  296 ;  Kohl-       85   Fed.   Rep.    846. 
mann  v.  Selvage,  34  N.  Y.  App.  Div. 


IxsuRA^"CE.  803 

other  damage,  the  insurer  was  held  liable.^"  A  clause  in  a 
policy  provided  that  the  insurer  should  not  be  liable  '"  for  any 
loss  caused  by  the  explosion  of  gunpowder,  camphene,  or  any 
explosive  substance,  or  explosion  of  any  kind."  The  building 
insured  was  destroyed  by  fire,  which  was  the  immediate  result 
of  an  explosion  ;  and  the  insurer  was  held  liable,  the  court  saying 
of  the  policy :  "  It  secures  exemption  from  liability  from 
losses  caused  by  explosions,  but  not  from  liability  for  losses  by 
fire  caused  by  explosions."  ^^ 

In  a  Missouri  case  the  following  language  was  used,  which 
shows  the  line  of  reasoning  in  cases  of  this  kind :  "  If  fire 
was  the  direct  and  proximate  cause  of  the  damage,  the  responsi- 
bility therefor  becomes  fixed.  It  would  make  no  difference 
whether  it  manifested  itself  in  combustion  or  explosion.  .  .  . 
The  explosion  of  a  coal  oil  lamp,  caused  by  the  generating  of 
gas,  may  not  in  a  moment  communicate  the  fire  to  the  entire 
building,  but  it  may  result  in  as  complete  destruction  as  the 
ignition  of  gas,  which  permeates  every  part  of  the  building, 
and  destroys  the  whole  by  an  instantaneous  blaze.  Powder  may 
be  ignited  either  in  quantities  only  sufficient  to  communicate 
fire  to  combustible  materials  around  it,  or  sufficient  to  demolish 
the  largest  building.  There  would  be  only  a  difference  in  de- 
gree between  the  one  and  the  other.  Xo  reason  can  be  seen  why 
an  exception  to  an  indemnity  against  loss  by  fire  should  be  made 
because  the  work  of  destruction  is  instantaneous  and  by  explo- 
sion, rather  than  through  the  slow  process  of  gradual  communi- 
cation and  combustion."  ^* 

32  Scripture  v.   Lowell,   etc.,   Ins.  lies,  21  Wend.  .367;  Boatman's  Fire 
Co.,   10  Cush.  356;   Waters  v.  Mer-  Ins.  Co.  v.  Parker,  23  Ohio  St.  85. 
chants'    etc..  Ins.  Co..   11   Pet.  213;  s*  Renshaw  v.  Missouri,  etc.,  Ins. 
Hobbs    V.    Guardian,    etc.,    Co.,    12  Co.,    103   Mo.    595;    15    S.   W.   Rep. 
Can.  Sup.  Ct.   631.  945;  Aetna  Ins.  Co.  v.  Boon,  95  U. 

33  Commercial  Ins.  Co.  v.  Robin-  S.  117;  American  Steam,  etc.,  Ins. 
son.  64  111.  265;  Heflfron  v.  Kittan-  Co.  v.  Chicago,  etc.,  Co..  57  Fed. 
ning  Ins.  Co.,  132  Pa.  St.  580;  20  Rep.  294;  21  L.  R.  A.  572;  Boat- 
Atl.  Rep.  698 ;  Renshaw  v.  Missouri,  man's,  etc.,  Ins.  Co.  v.  Parker,  23 
etc.,    Ins.    Co.;    33    Mo.    App.    394;  Ohio  85. 

Greenwald  v.  Ins.  Co..  3  Although   not   liable   for  damr.ges 

Phila.  323;  Citv  Fire  Ins.  Co.  v.  Cor-       caused  by  an  explosion,  yet  a  com- 


804  OIL    AND    GAS. 

§698.     Explosions  of  oil  or  gas. 

The  general  rule  is  that  the  ordinary  fire  ix)licies  do  not 
cover  lossea  occasioned  by  explosions  not  directly  connected  with 
fire,  such  as  a  loss  occasioned  by  the  explosion  of  a  steam 
boiler.""*^  So,  too,  an  explosion  of  gunpowder  that  wrecks  a 
house  is  not  such  an  act  as  a  fire  jx^licy  covers;  and  it  cannot 
he  said  that  the  fire  which  ignited  the  powder  was  the  fire  in- 
sured against."*^  So  where  a  policy  provided  that  the  insurance 
company  should  not  1k»  Hal)l('  "  for  loss  caused  hy  .  .  .  ex- 
plosions of  any  kind  unless  fire  ensues,  and  then  for  the  loss  or 
damage  by  fire  only  " ;  and  vapors  arising  from  the  works  in 
the  mill  insured,  where  the  rectifying  of  spirits  was  carried 
on,  came  in  contact  witli  a  l)uniiiiii-  lani])  in  the  mill,  left  there 
by  persons  repairing  the  nuichincry,  causing  an  instantaneous 
explosion,  which  blew  off  the  roof  of  th«5  mill,  blew  down  the 
greater  part  of  the  walls,  injured  the  nnichiner)',  and  produced 
a  fire  which  occasioned  some  damage,  though  slight  compared 
with  that  caused  by  the  explosion,  it  was  held  that  the  insur- 
ance company  was  liable  only  for  the  damages  caused  by  the 
fire,  and  not  for  those  caused  by  the  explosion  itself.^^  So 
where,  under  a  like  exemption  clause,  a  mixture  of  wliiskey 
vapor  in  a  store  insured  and  atmosphere  came  in  contact  with  a 
gas  jet  and  exploded,  setting  a  fire  in  motion  which  destroyed 
the  insured  property ;  it  was  held  that  the  loss  was  from  the  fire 
occasioned  by  the  explosion,  and  that  the  company  was  not  liable 
for  it,  and  that  the  burning  gas  jet  "  was  not  such  a  fire  as  was 
contemplated  by  the  parties  as  the  peril  insured  against."     The 

pany     is     liable     for     the     damages  Cas.    760;    Millaudon    v.    New    Or- 

oaused  by  the  fire  started  by  the  ex-  leans    Ins.    Co.,   4    La.    Ann.    15;    3 

plosion.     Heffron  v.  Kittanning  Ins.  Benn.  Fire  Ins.  Cas.  4. 

Co.,   132   Pa.   St.   580;   20  Atl.  Rep.  36  Everett    v.    London    Assurance 

698.  Co.,   supra  :   Caballero   v.  Home  In- 

35  Insurance  Co.  v.  Tweed,  7  Wall  surance  Co.,   15  La.  Ann.  217;  Ger- 

44;     Waldeck    v.    Springfield,    etc.,  man  Ins.  Co.  v.  Roost,  55  Ohio  St. 

Ins.  Co.,  56  Wis.  96;  14  N.  W.  Rep.  ""581;  45  N.  E.  Rep.  1097;   36  L.  R. 

1;    12  Ins.  L.  Jr.   177;   St.  John  v.  A.  236. 

American,   etc.,    Ins.   Co.,    11    N.   Y.  si  Briggs  v.  North  American,  etc., 

516;   1  Duer  371;  3  Benn.  Fire  Ins.  Ins.  Co.,  53  N.  Y.  446. 


IXSUEAXCE.  805 

court  said :  "  The  gas  jet,  though  burning,  was  not  a  de- 
structive force,  against  the  immediate  effects  of  which  the  policy 
was  intended  as  a  protection.  Although  it  was  a  possible  means 
of  putting  such  destructive  force  in  motion,  it  was  no  more  the 
peril  insured  against,  than  a  friction  match  in  the  jiocket  of  an 
incendiary."  ^*  The  same  was  held  where  illuminating  gas  in 
a  room  was  ig-nited  by  the  striking  of  a  match,  for  the  reason 
that  the  explosion  and  not  the  lighting  of  the  match  was  the 
proximate  cause  of  the  loss.^^  So  where  a  loss  was  occasioned 
by  a  lighted  fire  being  applied  to  some  unknown  substance 
placed  in  a  doorway,  which  broke  the  windows,  broke  the  door 
sill  and  slightly  discolored  some  of  the  paint  on  the  house,  it 
was  held  that  the  company  was  not  liable.'*"  But  where  fire 
exists  on  the  premises  or  on  the  premises  adjacent  thereto,  and 
in  its  progress  reaches  an  explosive,  causing  an  explosion,  from 
which  loss  results,  the  fire  is  the  proximate  cause  of  the  loss,  and 
the  insurer  liable.*^  A  policy  of  insurance  provided  that 
"  neither  will  the  company  be  responsible  for  loss  or  damage 
by  explosion,  except  from  explosion  by  gas."  On  the  premises 
an  inflammable  and  explosive  vapor  was  evolved  in  the  process 
of  extracting  oil  from  shoddy.  The  oil  caught  fire  and  after- 
wards exploded,  causing  a  further  fire,  besides  the  damage  by 
the  explosion  itself.  It  was  held  that  the  word  "  gas "  as 
used  in  the  policy  meant  illuminating  coal  gas,  and  that  the 
insurer  was  liable  for  the  damage  caused  by  the  exploding  gas 

38  United  Life  Ins.  Co.  v.  Foote,  Guardian,  etc.,  Co.,  12  Can.  Sup. 
22  Ohio  St.  340;   2  Ins.  L.  Jr.  190.  Ct.   631;   Washburn  v.  IVIianii,  etc., 

39  Heuer  v.  Northwestern,  etc.,  Ins.  Co.,  2  Fed.  Rep.  633 ;  2  Flipp. 
Ins.  Co.,  144  111.  393 ;  33  N.  E.  Rep.  664 ;  9  Ins.  L.  Jr.  68 ;  Dowe  v. 
411;  Heuer  v.  Winchester  Fire  Ins.  Faneuil  Hall  Ins.  Co.,  127  Mass. 
Co.,  1.51  111.  331;  37  N.  E.  Rep.  346;  Transatlantic  Fire  Ins.  Co.  v. 
873;    affirming    45    111.    App.    239;  Dorsey,  56  Md.  70;   Smiley  v.   Citi- 

Tannert  v.  Ins.  Co.,  34  zens',  etc.,  Ins.  Co.,  14  W.  Va.  33. 

La.    Ann.    249;    Roe    v.    Columbus,  4i  ,\^ashburn  v.  Western  Ins.  Co., 

etc.,    Ins.    Co.,    17   Mo.    301;    Mont-  2    Fed.    Rep.    633;    Fed.    Cas.    No. 

gomery   v.    Fireman's    Ins.    Co..    16  17216;  9  Ins.  L.  Jr.  424;  Washburn 

B.  Mon.  427.  v.  Artisans'  Ins.  Co.,  Fed.  Cas.  No. 

40  Phoenix  Ins.  Co.  v.  Greer,  61  17212;  9  Ins.  L.  Jr.  68;  Orient  Ins. 
Ark.  509;   33  S.  W.  Rep.  840.  Co.  v.  Leonard,  120  Fed.  Rep.  808. 

See  on  this  same  subject  Hobbs  v. 


80 G  OIL    AND    GAS. 

which  occurred  in  the  course  of  the  fire,  but  not  for  the  damages 
caused  by  the  explosion  and  the  fires  which  it  caused/"  Where 
a  policy  issued  to  an  express  company  provided  "  that  no  loss  is 
to  be  paid  arising  from  petroleum  or  other  explosive  oils  or  in 
case  of  a  collision ;  and  a  collision  took  place  with  a  train  loaded 
with  petroleum,  and  the  petroleum  took  fire  and  the  fire  con- 
sumed the  goods  insured,  the  insurer  was  held  not  liable.** 
Gasoline  was  kept  in  a  retail  store  and  tin  store.  The  store  was 
covered  by  a  policy  insuring  the  stock  of  goods,  and  to  the  policy 
was  attached  a  written  clause  which  included  a  grant  of  the 
privilege  to  keep  a  limited  quantity  of  gasoline.  The  printed 
clauses  of  the  policy  excluded  all  liability  for  explosives  of  any 
kind,  unless  fire  ensued,  and  then  covered  loss  or  damage  by  fire 
only.  An  explosion  was  caused  by  the  gasoline,  and  for  the  loss 
thus  incurred  the  insurer  was  held  not  liable.** 

§699.     Failure  to  disclose  use  of  oil. 

If  the  insured  does  not  reveal  the  fact  at  the  time  he  secures 
insurance  on  his  property  that  oil  is  habitually  kept  on  the 
premises  where  it  is  situated  or  contiguous  thereto,  it  may  be 
such  a  misrepresentation  as  will  avoid  his  policy.  Such  was 
held  to  be  the  case  where  the  diagram  of  the  property  furnished 
by  the  insured  and  his  application  did  not  show  that  a  building 
was  contiguous  to  the  one  insured,  and  that  it  was  used  as  a 
place  for  painting  barrels,  benzine  being  used  and  kept  in  it.'*^ 

§700.     Warranty. —  Hazard  not  increased. 

The  description  in  a  policy  may  amount  to  a  warranty  that 
the  contents  of  the  store  insured  are  not  hazardous  merchandise. 
If  such  is  the  case,  the  keeping  of  a  small  quantity  of  the  goods 

42  Stanley  v.  Western,  etc.,  Co.,  >*  Mitchell  v.  Potomac  Ins.  Co., 
L.  R.  3  Exch.  71;  37  L.  J.  Exch.  183  U.  S.  42;  22  Sup.  Ct.  Rep.  22, 
73;  17  L.  T.  (N.  S.)  513;  16  W.  affirming  16  U.  S.  App.  D.  C.  241. 
R.  369.  45  McFarland  v.  Peabody  Ins.  Co., 

43  Imperial   Fire  Ins.   Co.  v.  Far-  6  W.  Va.  425. 
ffo,  95  U.  S.  227. 


INSURANCE.  807 

declared  in  the  poliej  to.  be  hazardous  will  avoid  the  policy, 
although  the  risk  be  not  thereby  increased.  Such  was  the  case 
where  the  goods  were  described  in  the  policy  as  a  "  stock  in 
trade,  consisting  of  not  hazardous  merchandise,"  and  provid- 
ing that  if  the  store  should  be  used  for  carrying  on  or  exer- 
cising any  trade  or  business  or  keeping  merchandise  denomi- 
nated hazardous  in  the  terms  of  the  policy,  or  if  the  risk  should 
be  increased  with  the  consent  of  the  assured,  it  should  be  void.*'^ 

§701.     Particular  use  allowed. 

If  a  policy  provides  that  petroleum  shall  not  be  kept  or  used 
on  the  premises  except  for  lighting  purposes,  the  keeping  or 
using  of  it  on  the  jiremises  as  a  fuel  will  avoid  the  policy.*^ 

§702.     Extent  of  prohibiting  usage. 

As  a  rule  the  amount  of  use  of  the  prohibited  product  is  im- 
material. Thus  the  temporary  use  of  naphtha  on  a  single  occa- 
sion was  held  to  avoid  the  policy.*^  Where  no  inquiry  was 
made  by  the  company  at  the  time  it  issued  a  policy  concerning 
the  use  of  gasoline  on  the  premises,  the  use  of  it  thereafter  in 
contravention  of  a  prohibitory  clause  in  the  policy  will  avoid 
such  policy,  although  it  was  used  when  the  policy  was  issued.*" 

§703.     Occasional  use  of  hazardous  articles. 

It  has  been  held  that  the  occasional  use  of  articles  denomi- 
nated hazardous  would  not  avoid  a  policy  conditioned  against 

46  Richards  v.  Protection  Ins.  Co.,  Am.  Rep.  149,  reversing  9  Hun  415; 
30  Mo.   273.  Heron    v.    Phoenix,    etc.,    Ins.    Co., 

47  White  V.  Western,  etc.,  Co.,  18  180  Pa.  St.  2.57;  40  W.  X.  C.  55; 
W.  N.  C.  (Pa.)  279;  6  Atl.  Rep.  3G  Atl.  Rep.  740;  36  L.  R.  A.  517. 
113.  A  casual  deposit  of  the  prohibited 

48  Wheeler  v.  Trader's  Ins.  Co.,  article  in  the  building  was  held 
62  N.  H.  326,  450.  (But  it  should  not  to  avoid  the  policy.  Hynds  v. 
be  remarked  that  the  naphtha  was  f^chenectady,  etc.,  Ins.  Co.,  11  N.  Y. 
used  in  this  case  several  times,  and  5.54;  affirming  16  Barb.  119. 

a  cask  of  it  was  taken  on  the  prem-  49  McFarland    v.    St.    Paul,    etc., 

ises.)  Matson  v.  Farm  Building  Ins.  Co..  46  Minn.  519;  49  IST.  W. 
Fire    Ins.    Co.,    73    TST.    Y.    310;    29       Rep.  253, 


808  OIL    AND    GAS. 

their  use.^"  The  temporary  use  of  benzine  to  renovate  fur- 
niture and  carpets  will  not  avoid  a  policy,  although  the  risk 
thereby  be  increased  contrary  to  its  terms."'^^ 

§704,     Increase  of  risk. 

Xot  infrequently  policies  provide  that  any  increase  of  the 
hazard  assumed  by  the  insurer  shall  avoid  the  iwlicy.  Whether 
or  not  the  particular  thing-  done,  and  wliich  it  is  insisted  avoids 
the  policy,  increased  the  hazard  is  a  question  for  the  jury.^' 
Where  the  policy  provided  that  it  shmdd  be  void  if  tlie  linzard 
was  increased,  or  any  of  the  products  of  petroleuin  of  a  greater 
inflammability  than  kerosene  were  used  or  kept  on  the  prem- 
ises; and  when  the  policy  was  issued  the  insured  was  using  coal 
as  a  fuel,  and  afterwards  he  substituted  for  the  coal  a  ^'  reduced 
oil  "  of  less  inflannuability  tlian  kerosene,  it  was  hold  that  the 
only  question  was  as  to  the  method  of  using  the  oil,  and  whether 
the  hazard  was  thereby  increased. ^^  A  clause  in  a  policy 
avoided  it  if  there  was  an  increase  of  the  hazard.  For  several 
months  before  the  fire  tlie  insured  kept  in  a  room  where  the 
merchandise  insured  was  situated,  a  jug  containing  crude  petro- 
leum for  medical  purposes.  The  petroleum  did  not  cause  and 
had  nothing  to  do  with  the  fire;  but  the  evidence  tended  to 
show  that  its  presence  Avas  dangerous,  and  tended  to  increase 
the  risk.  It  was  held  error  for  the  court  to  refuse  to  charge 
the  jury  that  if  the  risk  was  actually  and  materially  increased 
it  avoided  the  policy.^*  Evidence  is  admissible  to  show  that 
the  occupation  of  the  premises  for  finishing  chairs,  wherein 
an  alcohol  lamp  w^as  used  and  exploded,  causing  the  fire,  that 


50  Merchants',  etc.,  Ins.  Co.  v.  .54;  Williams  v.  People's  Fire  Ins. 
Washington,  etc.,  Ins.  Co.,  1  Handy  Co.,  57  K  Y.  274;  Atherton  v. 
408;  La  Force  V.  Williams,  etc..  Co.,  British,  etc..  Co.,  91  Me.  289;  39 
43  Mo.  App.  518.  Atl.  Rep.  1006. 

51  Bently  v.  Lumberman's  Ins.  ^53  Grand  Rapids  etc.,  Co.  v.  Am- 
Co.,  191  Pa.  St.  276;  43  Atl.  Rep.  erican  Fire  Ins.  Co..  93  Mich.  396; 
209.  53  N.  W.  Rep.   53S. 

52  Pool  V.  Milwaukee,  etc.,  Ins.  54  Williams  v.  People's  Fire  Ins. 
Co.,   91    Wis.    530;    65   N.   W.   Rep.  Co.,  57  N.  Y.  274. 


INSUEAXCE.  809 

the  risk  was  thereby  increased.^'  A  policy  prohibiting  the  keep- 
ing of  baled  hay  is  avoided  by  keeping  large  quantities  of  loose 
nnbaled  hay ;  for  the  reason  that  loose  hay  is  more  hazardous 
than  baled  hay.^''  To  put  up  a  frame  building  near  the  one 
insured  in  which  is  placed  an  incubator  heated  by  the  use  of 
gasoline  or  kerosene  as  a  fuel  is  to  increase  the  risk  of  the  in- 
surer.^^  Where  gasoline  had  been  kept  in  violation  of  the  terms 
of  the  ix)licy,  but  at  the  time  of  the  fire  none  were  on  the  prem- 
ises, it  was  held  to  be  a  question  of  fact,  on  which  the  testimony 
of  experts  was  admissible,  whether  the  risk  had  been  increased ; 
and  the  effect  of  the  changed  condition  on  the  premium  rate 
which  should  have  been  charged  by  underwriters  generally  for 
the  insurance  of  the  property  may  be  shown  as  bearing  on  the 
issue,  though  it  is  not  conclusive.^^ 

§705.     Proof  of  custom  or  the  usual  practice. 

As  a  rule  proof  is  admissible  to  show  what  was  the  custom  or 
usual  practice  with  reference  to  the  keeping  of  prohibited  ar- 
ticles where  it  is  claimed  that  the  nature  of  the  property  insured 
was  such  that  the  articles  prohibited  were  a  necessary  part  of 
the  whole.  As  in  the  case  of  a  country  store,  proof  is  admissible, 
in  an  action  on  the  jjolicy,  to  show  custom  or  practice  with  refer- 
ence to  the  keeping  of  prohibited  articles,  such  as  gasoline.  ^^ 
But  if  there  is  an  express  provision  that  a  certain  oil  shall  not 

55  Appleby  v.  Astor  Fire  Ins.  Co.,  Co.,  105  Mass.  297 ;  Lietch  v.  At- 
54  N.  Y.  253.  lantic,  etc.,  Ins.  Co.,  66  N.  Y.  100. 

56  Dittmer  v.  Germania  Ins.  Co.,  59  American,  etc.,  Ins.  Co.  v. 
23  La.  Ann.  4.58;  8  A,  M.  Rep.  600.  Green,    16   Tex.   Civ.   App.    531;    41 

57  Yentzer  v.  Farmers',  etc.,  Ins.  S.  W.  Rep.  74 ;  Mascott  v.  Granite, 
Co..  200  Pa.  St.  325;  49  Atl.  Rep.  etc.,  Ins.  Co.  (Vt.),  35  Atl.  Rep. 
767.  75;   Maril  v.   Connecticut   Fire  Ins. 

58  Traders'  Ins.  Co.  v.  Catlin,  163  Co.,  95  Ga.  604;  23  S.  E.  Rep.  463; 
111.  256;  45  N.  E.  Rep.  255,  revers-  30  L.  R.  A.  835;  Hall  v.  Insurance 
ing  59  111.  App.  162.  See  Cornish  Co.,  58  K  Y.  292;  17  Am.  Rep.  255; 
V.  Farm,  etc.,  Ins.  Co.,  74  N.  Y.  Citizens'  Ins.  Co.  v.  McLaughlin, 
295;  Planters',  etc.,  Ins.  Co.  v.  53  Pa.  St.  485;  Tubb  v.  Liverpool, 
Rowland.  66  Md.  236;  7  Atl.  Rep.  Etc..  Ins.  Co.,  106  Ala.  651;  17  So. 
257;   Luce   v.   Dorchester,   etc.,   Ins.  Rep.   615. 


810  OIL    AND    GAS. 

be  kept  or  jDermitted  on  the  premises,  then  the  keeping  of  it  for 
trade  will  avoid  the  policy.^" 

§706.     Implied  consent  to  prohibited  use. —  Custom. 

An  implied  consent  to  use  the  buildings  in  a  manner  pro- 
hibited by  the  policy  may  be  drawn  from  the  use  to  which  the 
building  was  being  put  at  the  time  the  policy  was  issued,  or 
from  the  nature  of  the  stock  insured.  Thus  where  keeping  gun- 
powder was  prohibited,  yet  the  store  insured  was  such  a  store 
as  usually  contains  gunpowder  for  retail;  and  at  the  time  the 
policy  was  issued  the  insurance  agent  knew  gimpowder  was 
actually  kept  for  that  purpose  in  the  store,  it  was  held  that  the 
keeping  of  the  amount  usually  carried  by  retail  storekeepers 
did  not  avoid  the  policy."^  So  where  a  policy  placed  with  a 
silver  plating  company  on  its  stock  and  machinery  in  its  fac- 
tory, provided  "  that  the  entire  policy,  imless  otherwise  pro- 
vided by  agreement  indorsed  hereon  or  added  hereto,  shall  be 
void  (anything  contrary,  notwithstanding)  if  there  be  kept, 
used,  or  allowed  on  the  above  described  premises  .  ,  .  gas- 
oline," was  held  not  to  prohibit  the  use  of  gasoline  in  the  com- 
pany's business,  it  being  so  used  at  the  date  of  the  policy,  and 
the  use  being  necessary.  The  fact  that  only  such  amount  was 
brought  into  the  factory  at  any  one  time  as  was  used  in  a  single 
day  seems  to  have  had  some  bearing  on  the  decision.^"  A  policy 
containing  a  provision  declaring  it  to  be  void  if  gasoline  be 
"  kept,  used  or  allowed  "  on  the  premises  does  not  prohibit  the 

60  Birmingham  Fire  Ins.  Co.  v.  v.  Commercial,  etc.,  Co.,  12  Fed. 
Kroegher,  83  Pa.  St.  64;  24  Am.  Rep.  5.54;  11  Biss.  309;  11  Ins.  L. 
Rep.  147.  In  this  case  a  barrel  of  J.  688.  See  Sperry  v.  Springfield, 
petroleum  was  kept  for  sale  in  a  etc.,  Ins.  Co.,  26  Fed.  Rep.  234;  15 
store.  Ins.  L.  J.  270;  and  Steinbach  v.  Re- 
el Kenton  Ins.  Co.  v.  Downs,  90  lief  Ins.  Co.,  77  N.  Y.  498,  affirmed 
Ky.  236;  13  S.  W.  Rep.  882;  Mas-  13  Wall  183;  Steinbach  v.  Lafay- 
cott  V.  Granite,  etc.,  Ins.  Co.  (Vt.),  ette  Ins.  Co.,  54  N.  Y.  90. 
35  Atl.  Rep.  75;  Phoenix  Ins.  Co.  _^-6  2Fraim  v.  National  Fire  Ins. 
V.  Flemming,  65  Ark.  54;  44  S.  W.  Co.,  170  Pa.  St.  151;  37  W.  N.  C. 
Rep.  464;  39  L.  R.  A.  789;  Maril  .39;  32  Atl.  Rep.  613;  Northern,  etc., 
V.  Connecticut  Fire  Ins.  Co.,  95  Co.  v.  Crawford,  24  Tex.  Civ.  App. 
Ga.  604;   23  S.  E.  Rep.  463;   Stout  574;  59  S.  W.  Rep.  916. 


INSURANCE. 


811 


keeping  in  the  building  gasoline  to  be  used  in  filling  gasoline 
torches  for  use  in  removing  paint  from  the  building,  in  order 
to  repaint  it."^     Under  a  policy  placed  on  household  and  kitchen 
furniture    and    family    stores,    a    clause    pTohibiting    gasoline 
on    the    premises    will    not    prevent    the    use    of    gasoline    in 
the  kitchen  gasoline  stoves,  it  being  shown  that  household  and 
kitchen    furniture    ordinarily    include    gasoline    and    gasoline 
stoves.""^     It  Avas  held  that  the  prohibitory  clause  was  repugiiant 
to  the  general  tenor  of  the  policy  when  applied  to  the  articles 
insured.''"     Where  a  policy  on  a  store  prohibited  the  use  of  any 
burning  fluid  or  chemical  oils,  and  a  subsequent  clause  permitted 
the  use  of  kerosene  oil  as  a  light  in  the  dwelling  part  of  the 
building,  the  use  of  kerosene  in  the  store  rendered  the  policy 
void,  although  the  owner  slept  in  the  store  with  his  clerk,  and 
kept    the    kerosene    lamps    burning    as    a    protection    against 
buro-lars.""     A  house  was  insured  and  then  changed  into  a  gro- 
eery,    in   which    articles   were    sold   which    were    denominated 
"  hazardous."     This  was  held  to  avoid  the  policy." 

§707.     "  Storing."—"  Keeping." 

Fire  insurance  policies  usually  prohibit  the  storing  of  oils 
upon  the  premises  of  the  property  insured ;  and  not  infrequently 
the  question  arises  what  is  a  "  storing  "  of  oil.  Usually  the 
keeping  of  enough  oil  for  the  retail  trade,  as  retailers  are  in 
the  habit  of  doing,  will  not  avoid  a  policy  prohibiting  the  "  stor- 
ing "  of  oil.  Thus  a  grocer  may  keep  such  oils  in  reasonable 
quantities  as  grocers  usually  keep  and  which  is  incidental  to 
his  business,  although  there  be  a  clause  in  his  policy  suspending 

63  Smith  V.  German  Ins.  Co.,  107  65  it  is  different  if  fireworks  are 
Mich.  270;  65  N.  W.  Rep.  236;  Ack-  kept  in  the  dwelling  house.  Heron 
ley  V  Ph'cenix  Ins.  Co.,  25  Mont.  v.  Phoenix,  etc.,  Ins.  Co.,  180  Pa. 
272;  64  Pac.  Eep.  665.  St.  257;    40  W.  N.  C.   55;   36  Atl. 

64  American,     etc.,     Ins.     Co.     v.  Rep.  740;    36  L.  R.  A.  517. 
Green,  16  Tex.  Civ.  App.  531 ;  41  S  66  Cerf  v.  Home  Ins.  Co.,  44  Cal. 
W.    Rep.    74;    Snyder    v.    Dwelling  320;  13  Am.  Rep.  165. 

House   Ins.    Co.,   59   N.   J.   L.   544;  67  Davern  v.  Merchants',  etc.,  Ins. 

37  Atl.  Rep.   1022.  Co..  7  La.  Ann.  344. 


812  on.    AND    GAS. 

its  operations  if  oils  be  stored  in  the  building/'*  Even  the 
keeping  of  gasoline  for  retail,  in  reasonable  quantities,  will  not 
avoid  the  policy,  although  it  be  denominated  extra  hazardous  as 
an  article  of  storage/''  Where  the  assured  is  prohibited  "•  from 
using  the  premises  for  the  purpose  of  keeping  or  storing  therein 
any  goods  or  merchandise  of  the  kind  which  are  denominated 
hazardous,"  the  keeping  of  articles  in  the  stock  of  goods  insured 
which  are  of  a  hazardous  character,  but  which  are  required  by 
the  ordinary  course  of  his  trade  w^ill  not  avoid  the  policy,  for 
such  a  provision  is  merely  a  protection  against  the  appropria- 
tion of  the  store  for  a  depository  of  such  goods,  as  a  sole  or 
principal  business/"  In  such  an  instance  the  keeping  of  a  bar- 
rel of  oil  for  a  short  time  in  the  back  of  the  store,  with  bunches 
of  cotton  yarn  near  it,  was  held  not  to  prevent  a  recovery  for 
loss  by  fire  of  the  goods  insured/^  A  policy  denominated  flax 
as  hazardous,  and  provided  that  the  building^hould  not  l>e  ''  ap- 
propriated, applied  or  used  "  for  that  purpose.  The  building 
insured  had  been  used  for  flax  dressing  machinery,  but  before 
the  policy  was  issued  it  had  been  removed  and  a  cording  ma- 
chinery put  in.  A  small  quantity  of  nnl)r(:kpn  flax  remained 
piled  up  in  a  corner  of  a  room  two  days,  during  which  the  build- 
ing was  burned.  It  was  held  that  these  facts  did  not  shoAV  that 
the  building  was  "  appropriated,  applied  or  used  "  for  storing 
or  keeping  flax.'^"  A  policy  provided  that  if  the  premises  in- 
sured "  be  used  for  the  purpose  of  carrying  on  any  trade, 
business  or  vocation  denominated  hazardous,  or  extra  haz- 
ardous, or  sjDecified  in  the  memorandum  of  special  rates  in 
the  proposals  annexed  to  the  policy,  or  conditions  denominated 

68  New  York,  etc.,  Ins.  Co.,  v.  Co.,  59  Mo.  App.  204;  Ackley  v. 
Langdon,  6  Wend.  62.3;  Langdon  v.  Phoenix  Ins.  Co.,  25  Mont.  272;  64 
New   York,    etc.,    Ins.    Co.,    1    Hall       Pa.  Rep.  665. 

(N.  Y.)    226;   Maril  v.  Connecticut  to  Moore    v.    Protection    Ins.    Co., 

Fire  Ins.  Co.,  95  Ga.  604;   23  S.  E.  29  Me.  97;  48  Am.  Dec.  514;   Phce- 

Pvep.  463;   51  Am.  St.  Rep.  102;  30  nix  Ins.  Co.  v.  Taylor,  5  Minn.  492. 

L.  R.  A.  835.  7iLeggett   v.   Aetna    Ins.    Co.,    10 

69  Renshaw  v.  Missouri,  etc.,  Ins.  Rfch.  L.   202. 

Co..    103   Mo.   595;    15    S.   W.   Rep.  72  Hynds  v.  Schenectady,  etc.,  Ins. 

945;   23  Am.' St.  Rep.  904;   Colum-       Co.,  16  Barb.  119,  affirmed  11  N.  Y. 
bia,  etc.,  Co.  v.  American  Fire  Ins.       554. 


INSURANCE.  813 

hazardous  or  extra  hazardous,  or  included  in  the  special  rates, 
that  the  policy,  while  the  premises  were  so  used,  should  be  of  no 
effect,"  and  in  the  conditions  oil  and  turpentine  were  denomi- 
natcMJ  hazardous,  and  spirits  of  turpentine  extra  hazardous,  and 
houses,  buildings  or  repairing  were  included  within  the  menior- 
anduni  of  special  rates  of  premiums ;  it  was  held  that  the  fact, 
when  the  house  was  burnt,  that  painters  w^ere  employed  in 
repairing  the  house,  for  painting  the  inside,  and  for  that  pur- 
pose these  oils  were  kept  in  the  house,  while  the  work  was  going 
on,  such  a  quantity  of  paints,  oil  and  turpentine  did  not  avoid 
the  policy.'^  A  mere  privilege  to  use  a  gas  apparatus,  not 
actually  exercised,  nor  intended  to  be  exercised,  but  in  reality 
abandoned,  will  not  justify  the  insured  in  keeping  and  storing 
gasoline  in  a  place  and  manner  other  than  that  allowed  in  the 
policy.'*  Keeping  articles  to  be  exhibited  or  to  be  nscd  as 
means  and  instruments  of  the  exhibition  is  not  a  use  of  the 
building  "  for  the  pur]X)se  of  storing  or  keeping  therein  "  such 
articles  within  a  clause  of  the  policy  relating  to  hazardous  ar- 
ticles.'^ In  a  Massachusetts  case  it  was  said  that  ''  the  word 
'  kept,'  as  used  in  the  ]iolicy,  irajdics  a  use  of  the  premises  as 
a  place  of  deposit  for  the  prohibited  articles  for  a  considerable 
period."  ''^  A  provision  in  a  ]wliev  jirohilnting  the  keeping  of 
any  article  considered  hazardous  was  modified  by  endorsement 
upon  as  follows :  "  Permission  given  to  keep  one  barrel  of  ben- 
zine or  turpentine  in  tin  cans  .  .  .  for  use  on  the  prem- 
ises." One  barrel  of  benzine  was  brought  into  the  building, 
and  exploded  while  being  emptied  into  a  large  tin  can,  causing 
the  building  to  be  destroyed  by  the  fire  the  explosion  started. 
It  w^as  held  that  the  tem]X)rary  bringing  in  of  the  barrel  of 
benzine  was  not   a   "  kee]nng  of  benzine  "   in  violation  of  the 

73  0'Neil  V.  Buffalo  Fire  Ins.  Co.,  475;  33  N.  E.  Rep.  572;  35  Am.  St. 

3  N.  Y.  122.  Rep.   508;    19   L.   R.   A.   587,  citing 

T4  Liverpool,  etc.,  Ins.  Co.  v.  Gun-  ^Yilliams  v.   Ins.   Co.,   31   Me.   219; 

ther,  116  U.  S.  113;  6  Sup.  Ct.  Rep.  O'Neil    v.    Insurance    Co.,    3    N.    Y. 

306.  122;    Williams  v.  Insurance  Co.,  54 

-5  City  of  New  York  v.  Hamilton  X.  Y.  569;  13  Am.  Rep.  620;  Mears 

Fire  Ins.  Co.,  10  Bosw.  537.  v.    Insurance    Co..    92    Pa.    St.    15; 

T"  First  Congregational  Church  v.  Putnam       v.       Insurance       Co..      18 

Holyoke.    etc.,    Ins.    Co.,    158   Mass.  Blatchf.  368;  4  Fed.  Rep.  753. 


814  OIL    AND    GAS. 

terms  of  the  policy.^^  It  may  be  laid  down  as  a  general  proposi- 
tion that  the  nsual  clauses  in  fii'e  insurance  policies  prohibiting 
the  storing  or  keeping  of  certain  hazardous  articles  have  refer- 
ence to  a  storing  or  keeping  in  a  mercantile  sense  in  consider- 
able quantities,  with  a  view  to  sales  or  traffic,  or  when  storing 
or  keeping  is  the  principal  object  of  the  deposit,  and  not  where 
the  keeping  is  incidental  and  only  for  the  purpose  of  consump- 
tion.'^ To  merely  carry  gasoline  through  a  store  to  deliver  it 
at  once,  is  not  keeping  it  on  the  premises."  To  keep  it  on  the 
same  lot  but  in  a  separate  building  is  not  keeping  it  on  the 
premises.**" 

§708.     Store. 

Litigation  over  what  is  prohibited  in  policies  placed  on  a 
"  country  store  "  has  been  sharp  and  severe.  These  risks  are 
considered  rather  hazardous.  A  policy  placed  on  such  a  store 
is  not  avoided  by  the  keeping  of  gunpowder  and  coal  oil  under 
a  provision  prohibiting  the  keeping  of  such  articles,  where  it  is 
sho^\m  that  such  articles  are  usually  kept  in  such  a  store.^^  A 
policy  insured  a  building  occupied  as  a  store  and  the  merchan- 
dise permitted  to  be  kept  in  it,  was  such  as  was  "  usually  kept 
in  a  country  store,"  except  as  was  otherwise  provided  in  the 
policy.  The  clause  "  usually  kept  in  a  country  store  "  was 
written  in  ink.  In  the  policy  was  a  printed  clause  to  the  effect 
that  unless  otherwise  provided  by  agreement  indorsed  on  it,  it 
should  be  void  if  (any  usage  of  trade  to  the  contrary)  gasoline 
was  kept  on  the  premises.  The  court  held  that  if  gasoline  was 
an  article  usually  kept  in  a  country  store,  during  the  day  time, 
for  sale,  the  keeping  of  it  on  the  premises  for  that  purpose 
did  not  avoid  the  policy.  ^^     A  policy  placed  on  a  stock  of  goods 

"Maryland     Fire     Ins.     Co.     v.  S.  W.  Rep.   598.     See  Ran  v.  Win- 

Whiteford,  31  Md.  219.  Chester  Fire  Ins.  Co.,  36  N.  Y.  App. 

T8  Williams  v.  Fire  Ins.  Co.,  54  N.  Div.  179;  55  N.  Y.  Supp.  459. 

Y.  569;  13  Am.  Rep.  620.  si  American  Fire  Ins.  Co.  v.   Nii- 

■79  London,  etc.,  Ins.  Co.  v.  Fiseh-  gent,  7  Ky.  Law  Rep.  597 ;  Leggett 

er,  92  Fed.  Rep.  500.  v.  Aetna  Ins.  Co.,  10  Rich.  Law  202. 

80  Fireman's     Fund     Ins.     Co.     v.  82  Yoch  v.  Home  Mutual  Ins.  Co., 

Shearman,  20  Tex.  Civ.  App.  343;  50  111  Cal.  503;  44  Pac.  Rep.  189;   34 


INSURANCE.  815 

in  a  country  store  contained  a  printed  stipulation,  that  benzine 
should  not  be  kept  without  the  consent  of  the  insurer,  but  a 
written  clause  provided  that  the  policy  covered  such  goods  "  as 
is  usually  kept  for  sale  in  country  stores."  It  was  held  that 
proof  was  admissible  to  show  that  the  prohibited  goods  came 
within  the  written  clause.*^  A  clause  in  a  policy  rendering  it 
void  if  gasoline  be  kept  on  the  premises  was  held  to  apply  to 
Avhere  it  was  brought  to  the  store  to  be  used  in  a  gasoline  stove 
in  an  upstairs  room,  having  no  connection  with  the  store,  but 
reached  by  an  outside  stairAvay.®* 

§709.     Grocery. 

If  a  policy  placed  on  a  stock  of  groceries  kept  for  retail 
prohibit  the  use  of  the  building  insured  for  the  purpose  of  stor- 
ing goods  denominated  hazardous  or  extra  hazardous,  the  keep- 
ing of  oil  for  the  purpose  of  retail,  in  quantities  not  unusually 
large,  is  not  a  storing  of  oil  within  the  prohibitory  clause  of 
the  policy.^^  A  policy  provided  that  it  should  be  void  if  the 
premises  were  used  for  storing  or  keeping  on  the  premises  any 
article  mentioned  in  the  classes  of  hazards  annexed  to  it,  "  ex- 
cept as  herein  specially  provided  for,  or  hereafter  agi'eed  to  by 
the  insurer  in  w^riting  upon  this  policy."  The  court  found,  the 
goods  having  been  insured  as  "  groceries,"  that  the  term  "  gro- 
ceries "  included  a  certain  amount  of  such  hazardous  articles, 
and  held  that  they  were  so  especially  provided  for  in  w^riting 
on  the  policy.^*'  A  policy  on  a  stock  of  merchandise  prohibited 
the  keeping  of  petroleum  on  the  premises.  The  insured  kept 
a  barrel  of  petroleum  on  the  premises  for  sale ;  and  the  insur- 

L.  R.  A.  857 ;   Barnard  v.  National  ss  Langdon    v.     New    York,    etc., 

Fire  Ins.  Co.,  27  Mo.  App.  26;  Me-  Ins.  Co.,  1  Hall   (N.  Y.)   226;  Ren- 

chanics',    etc.,    Ins.    Co.    v.    Floyd,  shaw   v.    Missouri    State,    etc.,    Ins. 

20  Ky.  L.  Rep.  1538;  49  S.  W.  Rep.  Co.,    103   Mo.    595;    15   S.    W.   Rep. 

543.  945;    23    Am.    St.    Rep.    904;    New 

83  Tubb  V.  Liverpool,  etc.,  Ins.  York,  etc.,  Ins.  Co.  v.  Langdon,  6 
Co.,  106  Ala.  651;   17  So.  Rep.  615.  Wend.    623;    London,   etc.,   Ins.   Co. 

84  Boyer    v.    Grand    Rapids    Fire  v.  Fischer   92  Fed.  Rep.  500. 

Ins.   Co.,  124  Mich.  455;   83  N.  W.  so  Xi^j^^j-jj    ^jj-g    jjjs.    Co.    v.    De 

Rep.  124.  Graff,  12  Mich.  124. 


816  OIL    AND    GAS. 

ance  company  insisted  that  this  avoided  the  policy.  The  court 
instructed  the  jury  that  "  merchandise  "  included  whatever  it 
was  customary  to  keep  in  such  a  store,  and,  if  a  supply  of  petrn- 
leum,  such  as  was  kept  on  the  premises,  was  a  part  of  the  usual 
stock  of  the  store,  the  insured  could  recover.  This  was  held 
error,  for  the  reason  that  by  the  express  contract  petroleum  was 
to  be  excluded." '  Where,  after  a  policy  was  issued  on  a  dwell- 
ing house,  a  grocery  was  established  in  it,  in  which  articles  were 
sold  that  were  denominated  "  hazardous  ''  in  the  memorandum 
attached  to  the  policy,  it  was  held,  on  a  loss  by  fire,  that  the  in- 
sured was  not  entitled  to  recover.^*^ 

§710.     Watchmaker. 

Where  a  policy  is  issued  on  "'  watchmaker's  materials,"  it 
may  be  shown  by  parol  evidence  that  the  words  include  small 
amounts  of  benzine  and  kerosene,  although  the  policy  contains 
a  printed  stipulation  preventing  the  keeping  and  use  of  inflam- 
mable substances. *°  The  same  is  true  of  a  manufacturer  of 
brass  clock  works. ^° 

§711.     Furniture  store. —  Wagonshop. 

The  keeping  of  benzine  for  necessary  use  in  a  repair  shop  con- 
nected with  a  retail  furniture  store  will  not  avoid  a  policy  cover- 
ing the  store  and  shop  and  the  "  furniture,  upholstery  goods, 
and  other  merchandise,  not  more  hazardous,  usual  to  a  retail 
furniture  store,"  although  benzine  is  expressly  prohibited  in 
the  printed  conditions  of  the  policy."^      So  where  a  paintshop 

87  Birmingham  Fire  Ins.  Co.  v.  so  Bryant  v.  Poughkeepsie,  etc., 
Kroegher,  83  Pa.  St.  64;  24  Am.  Ins.  Co.,  17  N.  Y.  200,  affirming  21 
Rep.    147.      To    same    effect    Whit-       Barb.   154. 

march  v.  Charter  Oak  Fire  Ins.  Co.,  9i  Faust    v.    American,    etc.,    Ins. 

2    Allen    581;    Cerf.    v.    Home    Ins.  Co.,   01    Wis.    158;    64   N.   W.   Rep. 

Co.,   44   Cal.   320;    13  Am.   St.  Rep.  883;    30  L.  R.  A.   783. 

165.  A  policy  on  a  furniture  store  cov- 

88  Davern  v.  Merchants',  etc.,  Co.,  ers  paints  and  varnish  used  to  fin- 
7  La.  Ann.  344.  ish  the  furniture,  if  usually  kept  by 

89  Maril  v.  Connecticut  Fire  Ins.  dealers.  Haley  v.  Dorchester,  etc., 
Co.,  95  Ga.  604;  23  S.  E.  Rep.  463;  Ins.  Co.,   12  Gray  545. 

30  L.  R.  A.  835;  51  Am.  St.  Rep. 
102. 


CI  * 
INSURAiN'CE. 


.vas  tept  o.er  a  wago.shop,  both  owned  by  the  msu.ed  and 
operated  together;  and  half  a  barrel  of  bennne  was  kept  xn  he 
shop  it  was  held  that  the  printed  condition  prohrUtn.g  the 
keeping  of  benzine  was  vepugirant  to  the  written  clanse  msnv- 

ing  them.®' 

§712.    Factory. 

The  nse  of  gasoline  in  a  factory,  in  the  bnsiness  of  the  factory 
owner,  such  nse  being  necessary,  where  only  enongh  is  kept  as 
will  be  sufficient  for  a  short  time  -  as  for  a  day  -  will  not 
avoid  a  policy  prohibiting  the  nse  of  gasoline  in  such  factory. 
Snch  was  held  to  be  the  case  where  the  policy  was  issued  to  a 
silver  plating  company  on  its  tools  and  machin«-y  in  the  fac- 
tory »     In  the  case  of  a  rope  factory,  where  the  (Xilicy  pro- 
vided that  no  oil  should  be  used  on  the  premises,  the  use  of  t^sh 
oil    which  was  necessary  for  the  manufacture  of  a  particulai 
Mud  of  rope  manufactured  in  the  factory,  was  held  not  to  avoid 
the  policy  "     A  manufacturer  of  brass  clock  works  may  keep 
all  articles  necessary  to  and  usually  employed  in  that  manu- 
facture although  keeping  such  articles  is  set  forth  m  the  printed 
LrTof  the  policy  as  e.tra  hazardous.'^'     And  this  is  true  of 
any  factory  under  a  like  policy.'' 

§713.     Drug  Store. 

A  policy  issued  on  a  drug  store  insuring  "  articles  usually 
kept  for  retail  drug  stores  "  covers  gasoline,  benzine,  and  ether. 
The  keeping  of  such  articles  in  reasonable  quantities  on  the  in- 
sured premises  will  not  avoid  the  policy,  though  a  printed  con- 

^r      i,n„+«'    Ptp     Co  93  Bryant    v.    Poughkeepsie,    etc., 

92  Archer  v.  Merchants,  etc.,  Co.,       ^^^    ^y    ^^  ^^  ^    ^^^^    affirming  21 

43  Mo.  434.  ■        '             ,     j^           Connecticut 

93Fraim    v.    National    Fire    Ins.  Barb      154      ^aril    . 

r.     170  Vi    St    151;   32  Atl.  Rep.  Fire  Ins.  Co.,  95  Ga.  604     -^  » 

613      37    W.    N.    C.    39;    Mears    V.  Eep.  463 ;   30  L.  E.  A.  83o. 

^^"^'             '.       r        n       Q9  Pa    St  9c.  Yiele  V.  Germania  Ins.  Co..  2b 

15;  37  Am.  Rep.  d47. 

94  Banmgardner  v.  Ins.  Co.,  1  W. 

N.  C.  119. 


818  OIL    AND    GAS. 

dition  in  it  declares  that  unless  otherwise  provided  by  agreement 
endorsed  on  or  added  to  it,  the  policy  shall  he  void  if  there  he 
kept  benzine,  ether,  or  gasoline,  notwithstanding  any  custom  or 
usage  of  trade  may  permit  them  to  be  kept.^^  Where  a  whole- 
sale and  retail  drug  store  was  kept  in  the  same  building  sepa- 
rated only  by  a  thin  partition,  and  a  policy  was  issued  "  on 
their  Avholesale  stock  of  drugs,  paints,  oils,  dyestufPs,  and  other 
goods  on  hand  for  sale,  not  more  hazardous,  while  contained  in 
the  building,"  it  was  held  that  the  word  "  wholesale  "  was  sup- 
plemented, and  its  meaning  extended  to  "  other  goods  on  hand 
for  sale,"  not  simply  of  the  wholesale  stock,  but  all  other  goods 
"  contained  in  the  building."  ^* 

§714.     Laundry. 

The  operation  of  a  laundry  is  not  a  trad^  or  manufacture 
within  a  clause  in  a  policy  forbidding  the  use  of  gasoline,  not- 
withstanding any  custom  of  trade  or  manufacture,  so  as  to  pre- 
clude proof  of  a  custom  of  the  use  of  gasoline  by  the  residents 
of  the  community  at  the  time  the  policy  was  issued,  to  explain 
or  avoid  such  prohibitory  clause.'"' 

§715.     Patent  Leather  Factory. 

A  policy  placed  on  a  patent  leather  factory  allowed  benzole 
to  be  kept  in  a  shop  detached  from  the  building,  and,  as  needed, 
carried  into  the  factory.  Evidence  was  admitted  of  the  cus- 
tom in  ■  other  cities  as  to  the  way  in  which  benzole  was  ordi- 
narily carried  into  the  factory,  there  being  no  evidence  of  a 
different  custom  employed  at  the  place  where  the  factory  was 
located.^*'" 


97Ackley  v.   Phoenix  Ins.  Co.,  25  etc.,   Co.,   110  N.   C.   350;    14   S.   E. 

Mont.  272;  64  Pac.  Rep.  665;  Phoe-  Rep.    790. 

nix   Ins.   Co.  v.   Flemming,   65  Arli.  99  Northern,  etc.,  Co.  v.  Crawford, 

54;  44  S.  W.  Rep.  464;  39  L.  R.  A.  24  *Tex.   Civ.    App.    574;    59    S.   W. 

789.  Rep.  916. 

98  Wilson    Drug    Co.    v.    Phoenix,  if>o  Citizens'  Ins.  Co.  v.  McLaugh- 
lin,  53   Pa.   St.   485. 


INSURANCE.  811) 

§716.     Painter. —  Paintshop  or  factory. 

A  policy  issued  to  a  painter,  keeping  nothing  except  bis  pro- 
ductions, or  his  paints,  oils,  brushes,  and  other  ''  merchandise," 
covers  articles  of  necessity  and  convenience,  though  they  are 
not  kept  for  sale.^''^  A  written  rider  attached  to  a  policy  pro- 
vided that  the  insurance  was  against  loss  on  "  paints,  oils,  var- 
nishes," etc.,  "  and  such  other  articles  as  are  usually  kept  in  a 
sign  painter's  and  carriage  painter's  and  trimmer's  shop."  A 
printed  clause  in  the  body  of  the  policy  provided  that  "  this  en- 
tire policy,  unless  otherwise  provided  by  agi-eement  thereon,  or 
added  hereto,  shall  be  void  ...  if  (any  usage  or  custom 
of  trade  or  manufacture  to  the  contrary  notwithstanding)  there 
be  kept,  used,  or  allowed,  on  the  above  described  premises,  ben- 
zine," etc.  It  appeared  in  evidence  that  benzine  was  usually 
kept  in  ...  a  shop  such  as  the  one  insured.  It  was  held 
that  the  prohibition  with  respect  to  benzine  applied  only  when 
the  article  was  not  insured,  and  by  insuring  the  benzine  it  was 
^'  otherwise  provided,  by  agreement  indorsed  on  the  policy  "  that 
benzine  might  be  kept  on  the  premises.^""  If  the  written  part  of 
a  policy  on  a  paint  factory  provides  that  it  may  be  used  for 
''  hazardous  or  extra  hazardous  "  purposes,  it  will  control  the 
printed  part  prohibiting  the  keeping  of  benzine ;  and  the  prem- 
ises may  be  used  as  a  paint  factory  in  which  benzine  is  used  to 
manufacture  paints. ^''^ 

§717.     Torch  to  remove  paint  from  house. 

A  policy  provided  that  naphtha  should  not  be  used  on  the 
premises.  The  owner  of  the  house  employed  a  painter  to  paint 
the  house,  find  he,  with  the  consent  of  the  owner,  used  a  naphtha 
torch  to  remove  the  paint  on  the  house  preparatory  to  repainting 
it.  The  building  caught  fire  from  the  torch  and  was  consumed. 
Another  provision  in  the  policy  provided  that  the  circumstances 

101  Hartwell  v.  California  Fire  Mascott  v.  First,  etc..  Ins.  Co.,  60 
Ins.   Co.,   84  Me.   524;    24  Atl.   Rep.       Vt.  116;  37  Atl.  Rep.  255. 

954.  103  Russell  v.  Manufacturers',  etc., 

102  Mascott  V.  Granite,  etc..  Ins.  Ins.  Co..  50  Minn.  409;  52  N.  W. 
Co.,   68   Vt.   253;    35  Atl.   Rep.   75;       Rep.  906. 


820  OIL    AISTD    GAS. 

affecting-  the  risk  should  not  be  so  ahered  as  to  cause  an  increase 
of  such  risk.  It  was  held  that  there  was  an  alteration  of  "  the 
situation  or  circumstances  affecting  the  risk."  within  the  mean- 
ing of  the  condition  above  stated ;  that  the  risk  had  been  in- 
creased ;  that  although  no  naphtha  was  used  in  the  house,  it  was 
used  ''  on  the  premises  "  within  the  meaning  of  the  prohibitory 
clause ;  that  the  only  question  for  the  jury  was  whether  the  use 
of  the  naphtha  and  the  change  in  conditions  affecting  the  risk 
occurred  through  making  ordinary  repairs  in  a  proper  and  rea- 
sonable manner,  since  such  a  provision  in  a  policy  is  not  in- 
tended to  prevent  the  making  of  such  repairs  by  proper  means ; 
that  a  finding  of  the  jury  that  the  method  used  was  "  the  method 
ordinarily  pursued  to  remove  paint  on  the  outside  of  a  building 
preparatory  to  scraping  it  off,  to  paint  it,"  is  not  equivalent  to 
an  affirmative  finding  on  such  question,  for  it  assumes  that  the 
removal  of  the  old  paint  was  reasonably  necef&ary,  and  that  the 
particular  building,  as  to  the  danger  arising  from  moving  the 
flaming  torch  all  over  its  external  surface,  was  like  ordinary 
buildings ;  that  the  insurance  company  could  show  by  an  expert 
that  the  rates  on  a  building  whore  paint  is  to  be  removed  from 
the  outside  by  the  use  of  a  torch  would  have  been  higher  than 
if  there  was  to  be  no  such  use ;  that  an  expert  may  not  testify 
as  to  the  actual  effect  of  the  use  of  naphtha  in  reference  to 
danger  from  fire,  and  that  it  was  proper  to  admit  the  testimony 
of  an  expert  as  to  the  proper  and  usual  way  of  removing  paint 
from  a  building."*  But  where  a  policy  provided  that  it  should 
be  void  if  gasoline  be  "  kept,  used,  or  allowed  "  on  the  prem- 
ises, it  was  held  that  keeping  it  in  the  building  to  be  used  in 
filling  gasoline  torches  for  use  in  removing  paint  from  the  build- 
ing, in  order  to  repaint  it,  did  not  avoid  the  policy."^ 

104  First    Congregational     Churcli  los  Smith  v.  German  Ins.  Co.,  107 

V.  Holyoke,  etc.,  Ins.  Co.,  158  Mass.  Mich.  270;   6.5  N.  W.  Rep.  236;   30 

475 ;  33  N.  E.  Rep.  572 ;  35  Am.  St.  L.  R.  A.  368. 
Rep.  508;   19  L.  R.  A.  587. 


INSURANCE.  °'^^ 

^718.     Cleaning  clothes.—  Destroying  vermin. 

A  policy  on  a  dwelling  house  prohibiting  the  use  of  gasoline 
does  not  prohibit  the  use  of  gasoline  in  small  quantities  by 
members  of  the  insured's  family  for  the  purpose  of  cleanmg 
their  clothes,'°«  or  destroying  vermin.^'' 

§719.     Cleaning  or  lubricating  machinery. 

Temporarily  keeping  on  the  premises  small  quantities  of  ben- 
zine to  use  in  cleaning  machinery  and  needful  light  will  not 
avoid  a  policy  prohibiting  the  keeping  on  the  premises  ben- 
zine "^  Where  oil  was  in  constant  use  in  the  shop  to  lubricate 
the  machinery,  according  to  the  common  usage,  and  the  insurer 
knew  that  practice,  it  was  held  that  the  insurer  must  have  con- 
tracted with  reference  to  the  practice,  and  that  it  was  bound 
even  though  oil  thereafter  was  used  for  that  purpose  and  the 
policy  expressly  prohibited  the  keeping  or  using  of  oil  on  the 
premises. 

§720.     Waiver  by  knowledge  or  acquiescence  in  use  of  building. 

The  knowledge  of  the  company  of  the  use  the  building  was 
being  put  to  at  the  time  the  policy  is  placed  uix)n  it  may  amount 
to  a  waiver  of  the  prohibitory  clause  inserted  m  the  ix)licy ; 
for  in  such  an  instance  the  insurance  company  cannot  success- 
fully contend  that  the  policy  was  avoided  by  the  use  of  the 
building  in  the  manner  prohibited  in  the  policy.     To  do  so 
would  be  to  practically  deny,  often,  that  the  policy  was  ever  m 
force      Thus  a  policy  placed  on  a  factory  prohibited  the  use 
of  petroleum.     At  the  time  it  was  written  the  agent  of  the 
company  knew  that  the  factory  was  to  be  run  at  night  and 
lio-hted  by  "headlight  oil,"  a  product  of  petroleum;  and  it  was 
held  that  the  condition  should  be  deemed  to  have  been  waived 

.oecohunbia,   etc.,   Co.   v.   Ameri-  92   Pa.    St.    15;    37   An.     Rep.   64'7. 

can  Fire  Ins.  Co.,  59  Mo.  App.  204.  See  O'Neil  v.  Buffalo  Ins.  Co..  3  N. 

10.  La     Force    ^^'^f^^l^'^''^  ^\o''carlin    v.    ^Yestern.    etc..    Co.. 

"i:sSa";."no;^   -    CO.,  5.Ml'5I5;40An..Kep.440. 


822  OIL    AND    GAS. 

by  the  company.""  If  the  agent  knows  that  the  prohibited  ar- 
ticle is  kept  and  is  to  be  kept  on  the  premises,  the  policy  will 
not  be  avoided."^  A  policy  prohibited  the  keeping  of  gun- 
powder in  the  building  insured,  without  a  written  permission, 
and  it  also  contained  a  clause  that  nothing  less  than  a  distinct 
agreement,  endorsed  on  the  policy,  should  be  construed  a  w^aiver 
of  any  condition  or  restriction.  At  the  time  of  the  loss  the 
assured  had  a  few^  pounds  of  gunpowder,  which  was  kept  in  the 
insured  building  with  the  knowledge  and  express  consent  of  the 
insuring  company's  local  agent.  A  policy  had  been  issued  by 
the  same  company  on  the  same  building,  and  the  same  agent 
who  knew  gim powder  was  kept  in  the  building,  and  that  all 
premiums  had  been  paid  to  and  accepted  by  the  company,  ex- 
pressly permitted  the  keeping  of  the  powder  without  calling  the 
assured's  attention  to  the  prohibitory  clause.  It  was  held  that 
the  failure  of  the  assured  to  have  the  writtiti  consent  of  the 
company  indorsed,  on  the  policy,  under  the  circumstances,  did 
not  render  it  void,  for  the  condition  had  been  waived. ^^"  Where 
an  insurance  company  issued  a  policy  on  a  woollen  mill  and  its 
contents,  knowing  at  the  time  that  naphtha  was  used  and  was 
necessarily  used  in  the  business,  it  waived  a  printed  condition 
of  the  policy  that  it  should  be  void  if  the  assured  uses  naphtha ; 
and  after  a  loss  the  company  was  held  estopped  from  setting  up 
the  use  of  naphtha  to  defeat  a  recovery  on  the  policy."'''  If 
the  application  shows  the  nature  of  the  business  carried  on  in 
the  building  insured,  and  it  is  such  a  building  as  indicates  the 
character  and  the  nature  of  the  article  to  be  kept  in  the  build- 
ing, so  that  the  nature  and  extent  of  the  risk  must  have  been 

110  Couch  V.  Rochester,  etc.,  Ins.  Western,  etc.,  Co.  v.  Rector,  85  Ky. 
Co.,  25  Hun  469;  Rivara  v.  Queen's  294;  3  S.  W.  Rep.  415;  9  Ky.  L. 
Ins.  Co.,  62  Miss.  720;  Farmers'.  Rep.  3;  Bartholomew  v.  Merchants' 
etc.  Ins.  Co.  v.  Nixon,  2  Colo.  App.  Ins.  Co.,  25  la.  507;  96  Am.  Dec. 
265;  30  Pac.  Rep.  42;  Kruger  v.  65;  American  Fire  Ins.  Co.  v.  Nu- 
Western.  etc..  Ins.  Co.,  72  Cal.  91 ;  gent.  7  Ky.  Law  Rep.  597. 

13  Pac.  Rep.  156.  112  Reaper  City  Ins.  Co.  v.  Jones, 

111  Peoria,   etc..   Ins.   Co.   v.  Hall,       62   Ml.   458. 

12   Mich.    202;    Kenton   Ins.   Co.   v.  ii3  Wheeler    v.    Traders'    Ins.    Co. 

Downs,  90  Ky.  236;    13  S.  W.  Rep.       (N.  H.),  1  Atl.  Rep.  293. 
882;    12  Ky.  L.  Rep.   115.     Contra, 


iNSUEAisrcE.  823 

known  to  the  insurers  to  embrace  articles  and  pursuits  specified 
as  extra  hazardous,  the  carrying  on  of  a  business  in  the  building 
designated  as  extra  hazardous  will  not  avoid  the  policy."*  A 
policy  issued  by  a  foreign  insurance  company  prohibited  the 
storing  in  the  building  insured  petroleum  in  excess  of  five  gal- 
lons without  permission  first  endorsed  on  the  policy.  After  the 
policy  was  issued,  the  company's  local  agent  gave  the  insured 
verbal  permission  to  keep  on  the  premises  more  than  five  gal- 
lons. A  loss  occurred  under  the  policy,  but  not  from  the  keep- 
ing of  the  petroleum.  In  a  suit  on  it  there  was  evidence  of  a 
mutual  mistake  of  the  insured  and  the  agent  as  to  the  pro- 
hibitory clause  in  the  policy ;  and  it  was  held  that  it  was  proper 
to  submit  the  case  to  the  jury  on  the  ground  of  estoppel  caused 
by  such  mistake,  as  the  agent  alone  could  act  in  the  State  where 
the  policy  was  issued."^ 

§721.     Waiver  by  knowledge  of  acquiescence  in  use  of  building 
continued. 

^N^otwithstanding  the  cases  cited  in  the  previous  section,  it 
cannot  be  said  that  knowledge  of  the  use  the  building  is  put  to, 
at  the  time  the  ix)licy  is  issued,  will  always  prevent  its  for- 
feiture ;  nor  can  it  be  said  that  the  cases  are  harmonious  on  the 
question.  Thus  where  a  |X)licy  was  issued  on  a  country  store  in 
which  gunpowder  was  at  the  time  habitually  kept  and  intended 
to  be  kept,  to  the  insurance  agent's  knowledge,  who  also  repre- 
sented that  the  provisions  of  the  policy  did  not  prevent  the  in- 
sured keeping  it,  it  was  held  that  the  policy  was  avoided  because 
of  a  clause  in  it  prohibiting  the  keeping  of  gunpowder  and 
avoiding  it  if  powder  was  kept  in  the  building  covered  by  the 
policy."*'  Where  a  policy  on  a  stock  of  hardware  and  stoves 
provided  that  no  gasoline  should  be  used  or  kept  on  the  prem- 

114  City  of  New  York  v.  Brooklyn  Ky.  L.  Rep.  3.  Contra,  Peoria,  etc., 
Fire  Ins.  Co.,  41  Barb.  231.  Ins.   Co.  v.  Downs,  90  Ky.  236;    13 

115  Queer's  Ins.  Co.  v.  Harris  S.  W.  Kep.  882;  12  Ky.  L.  Rep. 
(Pa.),  2  Wkly.  N.  C.  220.  115;    Birmingham   Fire   Ins.   Co.   v. 

116  Western,  etc.,  Co.  v.  Rector,  Kroegher,  83  Pa.  St.  64;  24  Am. 
85   Ky.  294;    3   S.  W.  Rep.  415;    9  Rep.  147. 


824  OIL    AND    GAS. 

ises,  and  avoided  it  if  it  were  so  kept,  and  also  provided  that 
no  representative  of  the  company  could  waive  the  use  of  its 
provisions,  except  in  certain  cases  by  indorsement  on  the  policy, 
it  was  held  avoided  by  the  use  of  small  quantities  of  gasoline 
from  time  to  time  to  illustrate  the  operation  of  gasoline  stoves 
offered  for  sale,  although  the  local  agent  taking  the  application 
and  also  the  local  board  of  underwriters,  of  which  the  insurance 
company  or  its  agents  were  members,  knew  of  the  practice  of 
the  assured."^  The  consent  of  a  local  agent,  whose  authority 
is  limited  to  soliciting  insurance,  delivering  policies,  and  re- 
ceiving premiums,  to  change  the  use  of  a  building  and  use  it  for 
a  restaurant,  which  included  the  use  of  a  gasoline  stove,  will 
not  amount  to  a  waiver  of  the  terms  of  the  prohibitory  clause/^^ 
The  fact  that  the  company  'knew  there  were  no  gas  fixtures  in 
the  house  insured,  and  that  the  occupant  immediately  preceding 
the  issuance  of  the  policy  used  a  spirit  lamp  f^jr  lighting  such 
house,  was  held  not  to  constitute  a  waiver  of  the  clause  in  the 
policy  forbidding  the  use  of  spirit  gas.^^^  Where  the  insured 
had  kept  fireworks  in  another  store,  knowledge  of  the  insurance 
agent  of  this  fact  at  the  time  the  policy  was  issued,  was  held  to 
be  no  waiver  of  a  clause  in  the  policy  prohibiting  the  keeping 
of  them  in  the  building  insured/^"  If  there  is  nothing  in  the 
application  or  description  of  the  property  which  necessarily  im- 
plies or  indicates  the  use  to  which  it  is  or  will  be  put,  the 
insurance  company  will  not  waive  a  condition  in  a  policy  pro- 
hibiting the  use  of  gasoline,  nor  consent  to  an  existing  use 
which  could  have  been  ascertained  by  reasonable  investigation/^^ 
Tlie  fact  that  the  rate  charged  was  the  same  as  that  charged  for 
an  adjoining  building,  which  included  a  charge  for  the  use  of 
gasoline,  will  not  estop  the  insurance  company  from  claiming 

J  117  Fischer  v.  London,  etc.,  Ins.  na  Minzesheimer  v.  Continental 
Co..  83  Fed.  Rep.  807;  affirmed,  92  Ins.  Co.,  5  Jones  and  S.  (N.  Y.)  332. 
Fed.  Rep.  500;  Birmingham  Fire  120  Georgia  Home  Ins.  Co.  v.  Ja- 
ins. Co.  V.  Kroegher,  83  Pa.  St.  cobs,  56  Tex.  366. 
64;  24  Am.  Rep.  147.  i^i^IcFarland  v.  St.  Paul,  etc., 
"sGarretson  v.  Merchants',  etc..  Ins.  Co..  46  Minn.  519;  49  N.  W. 
Co..  81  Iowa  727;  45  N.  W.  Rep.  Rep.  253. 
1047. 


IXSURAXCE.  825 

a  forfeiture  for  a  breach  of  the  condition  against  the  use  of  gas- 
oline, on  the  ground  that  it  had  constructive  notice  of  such  use, 
the  insured  not  having  informed  it  of  the  use  of  the  gasoline.^'^ 
A  broker  procuring  insurance  for  the  insured  is  not  the  com- 
pany's agent;  and  his  faihire  to  inform  tlie  insured  that  the  use 
of  gasoline  will  avoid  the  policy  will  not  estop  the  company;  ^"^ 
nor  will  his  knowledge  of  the  use  of  forbidden  articles  on  the 
insured  premises  be  a  waiver  of  the  forfeiture/"' 

§722.     Waiver  by  receiving  premium  with  knovs^ledge  of  pro- 
hibited user. 

If  a  building  be  used  for  purposes  prohibited  by  the  policy, 
and,  with  full  knowledge  of  that  fact,  the  insurer  makes  and 
collects  assessments  on  a  premium  note  given  for  the  insuranc?, 
he  will  thereby  waive  the  forfeiture/'^  This  is  especially  true 
if  the  agents  of  the  company,  at  the  time  the  policy  was  issued, 
told  the  insured  that  an  article  prohibited  by  the  terms  of  the 
|X)licy  might  be  used ;  ^'^  or  the  company,  being  informed  of  the 
prohibited  use,  declines  to  fix  an  increase  rate  of  premiums,  and 
treats  the  contract  as  subsisting/"^  And  it  has  been  apparently 
held  that  a  failure  to  cancel  a  policy,  under  a  clause  allowing 
the  insurer  to  do  so,  after  he  has  notice  of  the  prohibited  use, 
will  amount  to  a  waiver  of  the  right  to  defend  because  of  such 


§723.     Waiver  by  adjusting  loss  or  accepting  proof  without  ob- 
jection. 

If  there  has  been  a  forfeiture  by  the  use  or  keeping  of  a  pro- 
hibited article  on  the  premises,  but  the  adjusting  agent  objects 

i22Turnbull    v.    Home    Fire    Ins.  126  Carrigan     v.     Lycoming     Fire 

Co.,  83  Md.  312;   34  Atl.  Rep.  875.  >is.  Co.,  53  Vt.  418;   38  Am.  Rep. 

i23Turnbull    v.    Home    Fire    Ins.  ()87. 

Co.,  83  Md.  312;   34  Atl.  Rep.   875.  127  Witte  v.  \Yestern.  etc.,  Ins.  Co., 

124  Kings  Coimty  Ins.  Co.  v.  Rwi-  1  Mo.  App.  188. 

gert.  11  111.  App.  590.  12s  Farmers',  etc..  Ins.  Co.  v.  Nix- 

i25Keenan  v.  Dubuque,  etc.,   Ins.  on.  2  Colo.  App.  265;  30  Pac.  Rep. 

^o.,  13  Iowa  375.  42. 


826  OIL    AND    GAS. 

to  the  proofs  received  solely  upon  the  ground  that  they  are  not 
made  out  in  the  form  used  by  the  company,  and  the  proofs  are 
then  made  out  on  blanks  furnished  by  him,  the  company  will 
waive  its  right  to  insist  upon  a  forfeiture/'"  So  if  the  com- 
pany require  proof  at  the  expense  of  the  insured,  without  claim- 
ing a  forfeiture,  there  will  be  a  waiver/''*'  But  where  the  policy 
had  ceased  to  have  any  effect  by  reason  of  the  fact  that  the 
insured  had  kept  prohibited  articles,  it  was  held  that" a  promise 
made  by  an  agent,  having  authority  to  adjust  and  pay  losses, 
with  knowledge  that  the  prohibited  articles  had  been  kept  in  the 
house  at  the  time  of  the  fire,  was  not  a  waiver  that  bound  the 
company/^^ 

§724.     Insurance  company's  right  of  action  to  recover  damages. 
Effect  of  insurance  on  right  of  action. 

If  a  company  has  insured  the  property  destroyed  by  the  negli- 
gence of  a  gas  company,  and  it  has  paid  the  loss  and  become  sub- 
rogated to  the  rights  of  the  owner,  it  may  maintain  an  action  to 
recover  damages  to  the  extent  of  the  loss,  or  at  least  the  amount 
of  the  loss,  it  has  paid,  where  the  amount  paid  is  less  than  the 
loss  sustained."-  The  fact  that  the  property  destroyed  is  fully 
insured  and  the  loss  has  been  paid,  does  not  prevent  the  owner 
recovering  damages  from  the  gas  company."^  From  a  reported 
case  it  would  seem  that  subrogation  is  allowed  where  an  insur- 
ance company  pays  the  loss,  even  though  the  policy  contain  no 
clause  of  subrogation.^^* 

120  Northwestern,  etc.,  Ins.  Co.  v.  lignt   Co.^    18   N.   Y.   App.   447;    46 

Germania    Fire    Ins.    Co.,    40    Wis.  N.  Y.  Supp.  158;  Lindsay  v.  Bridge 

446.  Water  Gas  Co.,  24  Pittsb.  L.  J.   (N. 

130  Garrettson  v.  Merchants',  etc.,  S.)    276;    14  Pa.   Co.   Ct.   Rep.   181. 

Ins.    Co.,   81    Iowa    727;    45   N.   W.  i34  German- American    Ins.    Co.    v. 

Rep.  1047.  Standard    Gaslight    Co.,    34    N.    Y. 

lii  Phoenix   Ins.    Co.   v.   Lawrence  Misc.    Rep.    594;    70    N.    Y.    Supp. 

4  Mete.    (Ky.)    9;  81  Am.  Dec.  521.  384;    67    N.    Y.    App.   Div.    539;    73 

132  Indiana,  etc.,  Gas  Co.  v.  New  N.  Y..Supp.  973.  See  Commercial 
Hampshire,  etc..  Co..  23  Ind.  App.  LTnidn  Fire  Ins.  Co.  v.  Lister,  23 
298 ;  53  N.  E.  Rep.  485.  Gas  J.  364. 

133  Armbruster    v.    Anburn    Gas- 


INSURANCE.  827 

§725.     Gas  company  causing  fire  liable  to  insurance  company. 

A  gas  or  oil  company  negligently  causing  a  loss  by  fire  is 
liable  to  an  insurance  company  that  "\vas  liable  to  pay  the  owner 
for  the  loss.  The  right  of  action  is  based  upon  the  liability 
of  the  company  to  the  owner  of  the  property  destroyed.^^^  The 
insurance  company  is  subrogated,  upon  payment  of  the  loss,  to 
all  the  rights  of  the  insured."''  If  the  insured  has  released  the 
gas  or  oil  company  before  payment  is  made  by  the  insurance 
company,  then  the  latter  cannot  recover  from  the  gas  or  oil 
company  causing  the  damages."^  If  the  insured  release  the 
wrong-doer  from  all  liability,  he  thereby  releases  the  insurance 
company;  and  if  the  release  is  in  part,  he  releases  the  insurance 
company  to  that  extent.^''*  If  the  loss  is  payable  to  a  mort- 
gagee of  the  property  destroyed ;  and  the  policy  provides  that  by 
no  act  of  the  owner  of  the  property  shall  the  policy  be  forfeited, 
then  upon  payment  of  the  amount  due  under  the  policy,  not  to 
exceed  the  amount  due  on  the  mortgage,  the  insurance  company 
may  foreclose  the  mortgage  against  the  property,  if  the  policy 
as  to  such  owner  Avas  avoided  by  his  act.^^" 

135  Insurance  Co.  of  N.  A.  v.  Fi-  Granite   Ins.    Co.,   63  Neb.   514 ;    73 

delity,  etc.,  Co.,  125  Pa.  St.  523;   16  N.  VV.  Rep.  950. 

Atl.    Rep.    791;    2    L.    R.    A.    580;  i37  phoenix  Ins.   Co.   v.   Erie,  etc., 

Svea,  etc.,  Co.  v.  Packham,  92  Md.  Co.,  117  U.  S.  312;  6  Sup.  Ct.  Rep. 

464;  48  Atl.  Rep.  359;  52  L.  R.  A.  750,  1176;  Packham  v.  German  Fire 

95.  Ins.  Co.,  supra. 

130  Insurance  Co.  of  N.  A.  v.  Fi-  i38  Packham  v.  German  Fire  Ins. 
delity,  etc.,  Co..  supra;  Niagara  Co.,  supra;  Aetna  Ins.  Co.  v.  Hum- 
Fire  Ins.  Co.  V.  Fidelity,  etc.,  Co.,  boldt,  etc.,  Ry.  Co.,  3  Dill  2.  Con- 
125  Pa.  St.  516;  16  Atl.  Rep.  791;  tra,  People's  Natural  Gas  Co.  v. 
Packham  v.  German  Fire  Ins.  Co.,  Fidelity,  etc.,  Co.,  150  Pa.  St.  8; 
91  Md.  515;  46  Atl.  Rep.  1066;  50  24  Atl.  Rep.  339;  Insurance  Co.  of 
L.  R.  A.  828 ;  Norwich  Fire  Ins.  So-  N.  A.  v.  Fidelity,  etc.,  Co.,  123  Pa. 
ciety  V.  Standard  Oil  Co..  59  Fed.  St.  523;  16  Atl.  Rep.  791;  2  L.  R. 
Rep.  984;   8  C.  C.  A.  433;   19  U.  S.  A.   586. 

App.    460;    Hall   x.    Nashville,    etc.,  "9  Badger    v.    Platts,    68    N.    H. 

Ry.   13  Wall  367;    Sims  v.  Mutual,-  222;     44    Atl.    Rep.    296;     Traders' 

etc.,  Ins.  Co.,   101   Wis.  586;   77  N.  Ins.   Co.   v.   Race,   142   111.   338;    31 

W.    Rep.    908;    Omaha   Ry.    Co.    v.  N.  E.  Rep.  392. 


828  OIL    AND    GAS. 

§726.     Inhaling  gas,  accident  or  life  insurance  policy. 

Clauses  in  accident  or  life  insurance  policies  often  provide 
that  the  company  shall  not  be  liable  for  injuries  or  deaths  pro- 
duced by  inhaling  gas.  In  such  a  case  if  the  inhaling  is  done 
while  asleep  or  unconscious,  it  is  considered  that  such  a  clause 
is  not  violated,  and  a  recovery  is  allowed. "°  In  the  case  just 
cited  the  court  declared  that  "  in  expressing  its  intention  not 
to  be  liable  for  death  from  '  inhaling  of  gas,'  the  company  can 
only  be  understood  to  mean  a  voluntary  and  intelligent  act  by 
the  insured,  and  not  an  involuntary  and  unconscious  act.  Read 
in  that  sense,  and  in  the  light  of  the  context,  these  Avords  must 
be  interpreted  as  having  reference  to  medical  or  surgical  treat- 
ment, in  which  ex  vi  termini  would  be  included,  the  dentist's 
work ;  or  to  a  suicidal  purpose."  ^*^  Where  a  provision  of  an 
accident  policy  was  that  the  company  "  does  not  insure  against 
the  death  or  disability  .  .  .  arising  from  anything  acci- 
dentally taken,  administered,  inhaled,  contact  of  poisonous  sub- 
stances, inhaling  gas,  or  any  surgical  operation,"  it  w^as  held 
that  the  company  w^as  not  relieved  from  liability  for  a  death 
caused  by  inhaling  illuminating  gas  which  accidentally  escajDed 
into  an  hotel  room  where  the  insured  w^as  sleeping.  "  That  pro- 
vision in  the  ix)licy,"  said  the  court,  "  clearly  implies  voluntary 
action  on  the  part  of  the  insured,  or  some  other  person.  The 
insured  must  take  or  inhale,  or  another  must  administer.  The 
manifest  provision  is  to  exempt  the  insurer  from  liability  where 
the  insured  has  voluntarily  and  consciously,  but  accidentally 
taken  or  inhaled,  or  something  has  been  voluntarily  admin- 
istered which  was  injurious  or  destructive  of  life.  We  think 
that  the  particular  accidents  intended  to  be  excepted  by  that 
provision  are  the  accidental  taking  or  inhaling  into  the  system 
of  some  injurious  or  destructive  agency  under  the  mistaken 
belief  that  it  was  beneficial,  or,  at  least,  harmless.  That  is 
more  apparent  by  that  portion  of  the  provision  which  relates 

i-iopaul    V.    Travellers'    Ins.    Co.,  y.  U.-^S.,  etc.,  Co.,   123  N.  Y.   304; 

112  N.  Y.  472;   20  N.  E.  Eep.  .347;  2,5  N.  E.  Rep.  399;  9  L.  R.  A,  617; 

aflfirminEr  45  Him  313.  reversing  3  N.  Y.  Supp.  237. 

141  Affirmed  in  principle  in  Bacon 


IXSURAXCE.  829 

to  something  '  administered/   as  it  cannot  be  reasonably  con- 
strued as  referring  to  a  thing  involuntarily  and  unconsciously 
administered.     Indeed,  it  is  quite  difficult  to  understand  how 
a  thing  could  be  involuntarily  and  unconsciously  administered. 
Coupled  together  as  these  provisions  are,  the  same  rule  of  con- 
struction must  be  applied  to  that  portion  which  relates  to  some- 
thing accidentally  inhaled  as  applies  to  the  portion  which  relates 
to  a  substance  accidentally  taken  or  accidentally  administered. 
All  cases  thus  provided  for  plainly  involve  voluntarj^  and  con- 
scious action  on  the  part  of  the  insured,  or  some  other  person. 
The  leading  and  controlling  idea  in  this  provision  is  the  ^Derform- 
ance  of  a  voluntary  act  which  accidentally  causes  the  death  or 
injury  of  the  insured.     That  a  proper  construction  of  the  policy 
requires  us  to  hold  that  it  applies  only  to  cases  where  something 
has  been   voluntarily   and    intentionally,    although   mistakenly 
taken,   administered,  or  inhaled,  there  can,  we  think,  be  but 
little   doubt.     As   thus   construed,    this   provision,    manifestly, 
did  not  exempt  the  defendant  from  liability  in  this  case,  as  it 
was  admitted  that  the  death  of  the  insured  was  occasioned  by 
accidental  means,  and  was  caused  by  involuntary  and  accident- 
ally breathing  illuminating  gas  which  had  escaped   into  the 
room  where  he  was  sleeping  at  the  time  of  his  death.     The 
argument  that  the  provision  as  to  inhaling  gas  has  been  given 
the  same  effect  as  is  now  given  to  the  other  and  more  general 
one,  and  that  such  could  not  have  been  their  purpose,  has  little 
force.     The  inhaling  of  gas  having  been  si>ecifically  provided 
for  when  taken  for  surgical  and  like  purposes,  it  is  only  when 
it  is  inhaled  for  some  other  purpose,  or  under  other  circum- 
stances, that  the  general  provision  applies.     The  special  provi- 
sion is  applicable  when  gas  is  inhaled  for  surgical  and  like 
purposes.     The  general  provision  applies  when  it  is  inhaled 
for  other  purposes."  ^*^ 

142  T^Ienneilley  v.  Employers',  etc.,  ing    59    111.    App.    297 ;    Pickett   v. 

Corp     148  N.  Y.  596;  43  X.  E.  Rep.  Pacific,   etc..   Ins.   Co..    144   Pa.    St. 

54;   31  L.  Pv.   A.   686;   affirming  25  79;    'Z'!    Atl.    Rep.    871;    Travellers' 

N    y    Supp.  230;  Fidelity,  etc..  Co.  Ins.  Co.  v.  Dunlap.  160  111.  642;  43 

V.   Waterman.    161    111.   632;    44   N.  N,    E.    Rep.    765.    affirming   59   111. 

E   Rep.  283;  32  L.  R.  A.  654.  affirm-  App.  515   (unknowingly  taking  pois- 


830 


OIL    AND    GAS, 


Death  caused  by  inhaling  gas  in  the  atmosphere  is  regarded 
as  death  produced  b}^  a  violent  external  agency  within  the 
meaning  of  a  provision  of  a  jwlicy  requiring  the  death  to  be 
caused  by  external  and  violent  means.^*^  And  where  the  in- 
surance company  admitted  that  the  death  was  caused  by  invol- 
untary and  accidental  breathing  of  illuminating  gas  which  had 
accidentally  escaped  into  the  deceased's  room;  that, there  were 
no  visible  marks  of  the  accident  upon  the  body,  but  when 
artificial  respiration  was  produced,  illuminating  gas  emanated 
therefrom  to  the  perception  of  the  persons  producing  such 
respiration ;  and  that  on  entering  the  room  it  was  perceived 
to  be  full  of  gas,  and  gas  was  still  escaping,  and  that  an  inspec- 
tion of  the  body  showed  life  to  be  extinct,  this  was  held  to 
authorize  a  recovery  on  the  policy.^** 


on)  ;  Healey  v.  Mutual,  etc..  Co., 
133  111.  556;  25  N.  E.  Rep.  52  (un- 
knowingly taking  poison)  ;  Metro- 
politan, etc.,  Assn.  v.  Froiland,  161 
111.  30;  43  N.  E.  Rep.  766,  affirm- 
ing 59  111.  App.  522;  Picket  v.  Pa- 
cific, etc.,  Ins.  Co.,  144  Pa.  St.  79; 
22  Atl.  Rep.  871;  Omberg  v.  U.  S., 
etc.,  Association,  111  Ky.  303;  40 
S.  W.  Rep.  909;  Lowenstein  v.  Fi- 
delity and  Casualty  Co.,  88  Fed. 
Rep.  474;  affirmed  97  Fed.  Rep.  17; 


Healey  v.  Mutual,  etc.,  Co.,  133  111. 
556;  25  N.  E.  Rep.  52.  Contra, 
Richardson  v.  Ins.  Co.,  46  Fed.  Rep. 
843;  and  see  Kasten  v.  Interstate, 
etc.,  Co.,  99  Wis.  73;  74  N.  W. 
Rep.  534;  40  L.  R.  A.  651. 

143  Paul  V.  Travellers'  Ins.  Co., 
supra;  United  States,  etc.,  Co.  v. 
Newman,  84  Va.  52;  3  S.  E.  Rep. 
805. 

144  Menneilley  v.  Employers',  etc., 
Corp.,  supra. 


CHAPTER  XXXII. 

TAXATION. 

§727.  Scope  of  chapter. 

§728.  When  corporate  stock  taxed,   property  of  company  exempt. 

§729.  Exempt  as  a  manufacturing  company. 

§730.  Gas  mains  of  city  plant  taxed  as  personal  property. 

§731.  Assessing  franchise. 

§732.  Valuation  of  stock. —  Certificates  as  to  surplus. 

§733.  Kxemption  of  municipalities  from  taxation. 

§734.  Rates  charged  consumers  not  taxes. 

§735.  Cost  of  inspection  of  meters. 

§736.  Object  of  tax.— Ohio  Statute  unconstitutional. 

§737.  United"  States  revenue. 

§738.  Set  off. 

§739.  Product    in   pipeline.     Inter-state  commerce. 

§740.  Exemption  from  taxation. 

§741.  Taxes  on  leases  and  minerals. 

§727.     Scope  of  chapter. 

Xecessarilv  this  chapter  must  be  limited  to  those  cases  in 
which  the  subject  of  taxes,  or  rating,  as  it  is  called  in  England, 
is  peculiar  to  gas  companies,  gas  and  oil  leases,  or  interests  m 
land,  gas  fixtures,  pipes  and  works,  and  oil  or  gas  when  held 
in  pipes,  tanks  and  reservoirs.  It  is  manifest  at  a  glance  that 
the  power  to  impose  taxes  and  the  liability  for  them  must 
depend  upon  statutes  in  force  at  the  place  of  taxation;  and 
that  a  decision  construing  one  statute  can  afford  little  light  m 
construing  another. 

§728.     When  corporate  stock  taxed,  property  of  company  exempt. 

The  value  of  stock  of  a  corporation  is  determined  by  the 
value  of  property  it  represents.  To  tax  both  the  stock  and 
the  property  would  be  double  taxation,  a  thing  that  it  cannot  be 

831 


832  OIL    AND    GAS. 

supposed  the  legislature  intended.  Where,  therefore,  the  stock 
of  a  gas  company  is  taxed,  the  property  it  represents  is  not 
taxable,  and  usually  the  property  is  such  property  as  is  neces- 
sary to  enable  the  corporation  to  execute  the  object  and  fulfill 
the  purposes  for  which  it  was  chartered.^  Dwelling  houses, 
however,  that  were  not  necessary  for  the  performance  of  a  com- 
pany's proper  work  and  which  had  been  built  for  the  accommo- 
dation of  its  working-men,  has  been  held  liable  to  taxation.^ 

§729.     Exempt  as  a  manufacturing  company. 

Under  a  statute  ^  exempting  from  taxation  "  manufacturing 
companies  carrying  on  manufactures  within  "  the  State,  an 
artificial  gas  company  organized,  even  before  the  statute  was 
enacted,  is  exempt  from  taxation ;  and  so  is  a  foreign  gas  cor- 
poration doing  business  within  the  State.'* 

§730.     Gas  mains  of  city  plant  taxed  as  personal  property. 

The  general  rule  is  that  gas  mains  of  a  city  plant,  laid  in 
the  public  streets  do  not  become  part  of  the  real  estate  but 
are  jjersonal  property,  and  taxable  as  such.  They  are  personal 
property  and  belong  to  the  gas  company,  and  are  a  part  of  the 
usual  and  necessary  appliances  of  such  an  establishment,  with- 
out which  the  gas  manufactured  could  not  be  received  or 
delivered  to  the  consumer.^  On  the  contrary  it  has  been  held 
that  reservoirs,  hydrants  and  pipes  of  a  water  company  are 
real  and  not  personal  property,  and  are  taxable  in  the  town 
in   which    they    are    situated.**     In    Iowa    the    entire    plant    is 

1  Coatsville  Gas  Co.  v.  County  of  Assessors    of    Brooklyn,     6     X.    Y. 

Chester,  97   Pa.   St.  476.  Trans.  App.  116;  Commonwealth  v. 

-  West  Chester  Gas  Co.  v.  County  Lowell   Gaslight   Co.,    12   Allen   75 ; 

of  Chester,  30  Pa.  St.  232.  Covington   Gaslight   Co.   v.    City   of 

3N.    Y.    Act.     1880,    Chap.    512,  Covington.    84   Ky.    94;    Shelbyville 

Sec.  3.  Water  Co.  v.  People.    140   111.   545; 

4  Nassau,  etc.,  Co.  v.  Brooklyn,  30  N.  E.  Rep.  678;  16  L.  R.  A.  505. 
25   Hun  567.  ejJover    v.    Main    Water    Co..    90 

5  Memphis  Gaslight  Co.  v.  State,  Me.  180;  38  Atl.  Rep.  101;  Con- 
6  Coldw.  310:  98  Am.  Dec.  452;  simiers'  Gas  Co.  v.  Toronto,  27 
People,  ex  rel  Citizens',  etc.,  Co.  v.  Can.    S.    C.    453;    affirmed    23    Ont. 


TAXATION. 


8or> 


assessed  as  a  whole,  including  the  pipes,  in  the  city  or  township 
where  the  main  works  are  located.'  In  England  gas-pnmpers, 
gas  retorts,  pumps  and  exhausters  are  taxed  as  fixtures,  but 
meters  are  personal  property.^  In  England  where  the  tax  is 
levied  on  the  income  after  allowing  certain  deductions,  where 
the  gas  works  were  situated  in  one  township  and  the  pipes 
extended  into  four  other  townships,  it  was  held  "  that  the  ratable 
value  of  the  mains  and  pii>es,  which  would  be  the  residue,  after 
deducting  the  net  ratable  value  of  the  stations,  works,  buildings 
and  lands  within  the  to^raship  where  situated  from  the  value  of 
the  whole  ratable  property  of  the  company,  must  be  apportioned 
among  the  different  to^vnships,  not  simply  according  to  the 
extent  of  the  mains  contained  in  each,  but  keeping  in  view  also 
the  fact  that  part  of  them  contributed  directly,  and  part  only 
indirectly,  to  the  profits/'  '''     If  the  pipes  are  to  be  assessed 


App.  Rep.  551.  (This  Canadian  de- 
cision is  controlled  by  a  Statute 
declaring  that  "'  land  .shall  include  " 
all  machinei-y  or  other  things  so 
fixed  to  any  outbuilding  as  to  form 
in  law  part  of  the  realty."  Consum- 
ers' Gas  Co.  V.  Toronto,  26  Ontario 
Eep.  722.)  Providence  Gas  Co.  v. 
Thurber,  2  R.  I.  15;  Riverton,  etc.. 
Co.  V.  Haig,  58  N.  J.  L.  295;  33 
Atl.  Rep.  215;  Paris  v.  Norway 
Water  Co..  85  Me.  330;  27  Atl.  Rep. 
143  (taxable  as  real  estate  in  the 
town  where  laid,  although  the  com- 
pany's works  are  situated  in  an- 
other town)  ;  People  v.  Martin,  48 
Hun  193;  Tidewater  Pipe  Line  Co. 
V.  Berry,  53  X.  J.  L.  212;  21  Atl. 
Rep.   490. 

T  Oskaloosa  Water  Co.  v.  Board, 
84  Iowa  407;   51  X.  W.  Rep.   18. 

8  Regina  v.  Lee,  L.  R.  1  Q.  B. 
241;  35  L.  J.  M.  C.  105;  12  Jur. 
(X.  S.)  225;  13  L.  T.  (X.  S.)  704; 
14  W.  R.  311. 

9  Michael  and  Will  on  Gas  and 
Water  (5  ed.).  53.  See  Regina  v. 
Mile  End  Old  Town.  10  Q.  B.  208; 


3  Xew  Sess.  Cas.  13;  16  L.  J.  M.  C. 
184;  11  Jur.  985;  Regina  v.  West 
Middlesex  Waterworks  Co.,  1  E.  and 
E.  716;  28  L.  J.  M.  C.  135;  5  Jur. 
(X.  S.)  1159;  Regina  v.  Sheffield 
Consolidated  Gaslight  Co..  32  L.  J. 
M.  C.  100;  4  B.  and  S.  135;  9  Jur. 
(X.  S.)  623;  8  L.  T.  (X.  S.)  692; 
11  W.  R.  1064;  Sculcoates  Union  v. 
Hull  Dock  Co.  [1985].  App.  Cas. 
137  ;  64  L.  J.  M.  C.  49 ;  71  L.  T.  642 ; 
43  W.  R.  623;  59  J.  P..  612;  11 
R.  74.  See  also  Riverton.  etc..  Co. 
V.  Haig.  58  X.  J.  L.  295:  23  Atl. 
Rep.  215.  where  the  court  refused 
to  class  the  plant  of  a  water  com- 
pany as  a  "  farm  "  or  "  lot  "  so  it 
could  be  assessed  in  one  district. 
"  The  idea  that  they  [the  pipes] 
may  be  considered  appurtances  to 
the  place  of  supply  and  taxable 
there  is  untenable.  There  is  no 
principle  upon  which  it  can  rest." 
Paris  V.  Xorway  Water  Co..  supra. 
Contra.  In  re  Des  Moines  Water 
Co..  48  la.  324 ;  Fall  River  v.  Bristol 
Co..  125  Mass.  567;  Oskaloosa  Wa- 
ter Co.  V.  Board.  84  la.  407;  51  N. 


834  OIL    AND    GAS. 

as  real  estate,  the  sale  of  the  real  estate  of  the  company,  other 
than  the  pij^es,  to  pay  the  tax  upon  thera,  is  erroneous.^" 

§731.     Assessing  franchise. 

In  Xew  York  a  foreign  gas  company  selling  and  distributing 
gas  to  consumers,  under  authority  from  a  municipality,  natural 
gas  furnished  by  another  company,  whose  property  consists  of 
pipes  and  mains  located  beneath  the  surface  of  the  street  and 
reservoirs  built  on  a  lot,  must  be  assessed  on  its  property  as 
real  estate  "  at  its  full  and  true  value  " ;  "  and  in  determining 
the  value  of  the  franchise  granted  by  the  municipality,  and  tlie 
v'alue  of  the  contract  Avith  the  company  for  supplying  the  city 
Avitli  gas,  cannot  be  considered.^" 

§732.     Valuation  of  stock. —  Certificates  as  to  surplus. 

The  value  of  the  physical  property  of  a  gas  company  does 
not  necessarily  determine  the  value  of  its  stock ;  nor  does  the 
amount  the  stockholders  would  receive  upon  a  dissolution  of 
the  corporation.  The  privileges,  rights,  patents  and  franchise 
of  the  company  must  also  be  considered  in  determining  the  value 
of  the  stock.^^  Certificates  of  a  stockholder's  interest  in  the 
surplus  revenue  of  the  company,  reserving  to  the  gas  company 
the  right  to  redeem  them  upon  notice  of  their  face  value,  or  by 
the  issue  of  ordinary'  stock,  are  not  taxable,  since  such  surplus 
is  taxable  to  the  company.^* 

W.  Rep.   18,:   15  L.  R.  A.  296;   San  12  People  v.  Martin,  48  Hun  193. 

Jose  V.  January,  57  Cal.  614;  Fond  The  New  York  laws  of  1855,  Chap. 

Du  Lac  Water  Co.  v.  Fond  Du  Lac,  37,  assessing  the  property  of  a  for- 

82    ,yis.   322;    52  N.   W.  Rep.   439;  eign  corporation,  has  no  application 

16  L.  R.  A.  581 ;  Yellow  River,  etc.,  to   such   a   case  as   is   above   stated, 

Co.   V.   Wood   County,   81   Wis.   554  as  that  statute  applies  only  to  per- 

51  N.  W.  Rep.   1004.  onalty.      Ibid. 

10  Capitol  City  Gaslight  Co.  v.  i3  People  ex  rel  Buffalo,  etc.,  Co. 
Charter   Oak    Ins.   Co.,   siqjra.  v.   Steele,  56  N.  Y^  664;    1   Sheldon 

For  a  short  discussion  of  gas  and  345. 

water  pipes  laid  in  a  public  street,  ^i4  People     ex     rel      Williamsburg 

see    article    by    J.    H.    Beale    in    4  Gas   Co.   v.   Assessors   of   Brooklyn, 

Harvard   Law   Review    83.  76   N.   Y.    202;    16   Hun    196. 

11  Laws    1881,   Chap.   293. 


TAXATION.  835 

§733.     Exemption  of  municipalities  from  taxation. 

The  property  of  a  mnnicipality  used  in  furnishing  natural 
gas  to  it  and  its  citizens  is  exempt  from  taxation  under  a  statute 
exempting  the  property  of  a  municipality  from  taxes.^^  But 
where  the  constitution  of  a  State  provided  that  "  there  shall 
he  exempt  from  taxation  public  property  used  for  public  pur- 
poses," it  was  held  that  a  city's  water  or  gas  plant  may  be 
taxed  by  the  State,  the  same  as  it  may  tax  any  private  corpora- 
tion.^'' A  statute  exempting  from  taxation  property  of  a  city 
used  by  it  in  furnishing  its  citizens  with  gas  or  water  does 
not  apply  to  an  independent  company  f'UiHiishing  such  inhab- 
itants with  gas  or  water,^^ 

§734.     Rates  charged  consumers  not  taxes. 

Rates  or  rents  established  by  a  municipal  corporation  to  be 
charged  for  the  use  of  w^ater  furnished  by  it  are  not  taxes 
which  may  be  collected  by  the  tax  collector,  even  though  the 
water  works  are  operated  at  a  profit. 

§735.     Cost  of  inspection  of  meters. 

A  statute  creating  the  office  of  a  gas  mctOr  inspector,  and 
providing  that  his  salary  shall  be  paid  by  assessment  upon  the 
various  gas  companies  of  the  State,  is  valid,  and  does  not  violate 
a  constitutional  provision  providing  that  all  taxes  shall  be 
assessed  upon  property  by  a  uniform  rule.  Such  an  assessment 
is  not  a  tax  for  general  revenue.     It  is  a  charge  for  a  special 


15  Toledo   V.   Hosier,   54    Ohio   St.  21  Ky.  L.  Rep.  42;   50  S.  W.  Rep. 

418;    43    K   E.    Rep.    583;    35    Ohio  845;     51    S.    W.    Rep.    343;    45    L. 

L.   J.    215.  R.  A.  518.    See  also  Wagner  v.  Rock 

leNeeley    v.    City    of    Henderson  Island,  146  111.  139;   34  N.  E.  Rep. 

(Ky.),    55    S.    W.    Rep.    5.54.      See  545;  21  L.  R.  A.  519. 
Commonwealth  v.  McKibbon,  90  Ky.  i7  Austin  v.  Austin  Gaslight  Co., 

384;    14  S.  W.  Rep.  372;   Covington  09  Tex.  180;  7  S.  W.  Rep.  200;  Xew- 

V.   Commonwealth,   19   Ky.   L.   Rep.  port  Light  Co.  v.  City  of  Newport, 

:05;  39  S.  W.  Rep.  836;   173  U.  S.  14  Ky.  L.  Rep.  464;  20  S.  W.  Rep. 

231;     Newport    v.     Commonwealth,  434. 


836  OIL    AND    GAS. 

purpose  growing  out  of  the  supervisory  power  of  the  State  over 
the  gas  companies'  business." 

§736.     Object  of  tax, —  Ohio  statute  unconstitutional. 

The  constitution  of  Ohio  contains  a  provision  declaring  that 
every  statute  imposing  a  tax  shall  state  distinctly  the  object  of 
such  tax,^**  A  statute  of  that  State  provided  that  in  counties 
of  a  certain  population  moneys  arising  from  the  tax  on  oil  wells 
should  be  returned  to  the  township  treasurer,  not  to  exceed  a 
specified  amount,  for  the  exclusive  purpose  of  repairing  high- 
ways. This  statute  was  held  to  violate  the  provision  of  the 
constitution  referred  to,  for  the  reason  that  the  tax  on  the  oil 
wells  was  raised  for  another  s|D€cific  purpose."" 

§737.     United  States  revenue. 

4 

An  Internal  Revenue  Act  of  the  United  States  "^  levied  a 

tax  upon  gas,  but  allowed  the  manufacturer  of  it  to  add  the 
tax  to  the  cost  charged  the  consumer.  The  City  of  Pittsburg 
surrendered  to  a  gas  company  certain  shares  of  stock  it  held 
in  the  company,  in  consideration  of  which  the  company  agreed 
to  furnish  it  with  gas  "  free  from  charge."  Under  this  agree- 
ment a  large  amount  of  gas  was  furnished  on  which  the  gas 
company  paid  the  tax,  and  then  brought  suit  to  recover  the 
amount  from  the  city.  But  they  were  defeated,  the  court 
holding  that  the  city  was  not  liable.^"  This  statute  provided 
that  the  gas  made  by  the  manufacturer  "  for  his  own  use  " 
should  not  be  taxable.  \^Tiile  it  was  in  force  the  Philadelphia 
gas  works  was  held  and  operated  by  trustees,  appointed  by  the 
city,  under  a  trust  agreement.     While  the  city  had  apparently 

18  Cincinnati      Gaslight      Co.      v.  Barre  v.  Crystal  Spring  Water  Co., 

State,  18  Ohio  St.  237.  7  Kulp.    (Pa.)    31. 

Under       its       general       "welfare  i^Ohio  Const.,  Art.   12,  Sec.  5. 

clause "    a    city    cannot    provide    by  20  State    v.    Fangboner,    14    Ohio 

ordinance  that  a  water  company  Cir.  Ct.  Rep.  104;  7  Ohio  Dec.  334. 
shall  be  annually  licensed  and  reg-         '*^i  13   U.   S.   Stat,   at  L.  2G4,   Sec. 

istered,  and  pay  a   certain  svim  to  94. 

the  city  for  police  purposes.   Wilkes-  22  Qas  Company  v.  Pittsbvu-g,  101 

U.   S.  219. 


TAXATION, 


837 


the  ultimate  ownership  of  the  gas  works  under  this  agreement, 
until  certain  debts  due  from  the  city,  contracted  to  build  and 
enlarge  the  works,  were  paid,  they  were  to  be  held  and  managed 
exclusively  by  these  trustees,  who  were  to  sell  gas  to  the  city 
at  a  certain  price,  and  set  aside  all  clear  profits  to  provide  a 
sinking  fund  for  the  payment  of  the  principal  due  the  creditors. 
It  was  held  that  gas  furnished  the  city  under  this  agreement 
was  ''made"  and  sold  within  the  meaning  of  the  statute  so 
as  to  render  it  liable  to  taxation.^^ 

§738.     Set  off. 

A  city,  when  sued  for  the  amount  it  owes  a  gas  company  for 
gas  furnished  it,  cannot  set  off,  when  a  statute  provides  that 
a  set  off  "  can  only  be  pleaded  in  an  action  founded  on  con- 
tract, or  ascertained  by  the  decision  of  the  court,"  against  such 
amount  the  delinquent  taxes  due  it  from  such  company;  for 
the  reason  that  taxes  "  neither  arise  upon  contract,  either  ex- 
pressed or  implied,  nor  is  the  amount  thereof  determinable  by 
the  judgment  of  a  court."  "* 

§739.     Product  in  pipeline.     Inter-state  commerce. 

A  pipe  line  company  transporting  oil  through  its  pipes  from 
one  State  to  another,  may  be  taxed  in  the  latter  State  for  the 
privilege  of  doing  business  in  that  State;  and  the  tax  may  be 
a  certain  percentage  of  the  receipts  from  the  transportation 
of  the  oil,  such  a  tax  not  being  an  interference  with  inter- 
State  commerce.''' 

23  City  of  Philadelphia  v.  Collec-  Maine  v.  Grand  Trunk  Ry..  142  U. 
tor,  5  Wall  720.  See  Glasgow  Gas  S.  217;  12  Sup.  Ct.  Hep.  121.  163; 
Comrs.  V.  Solicitor,  at  3  Court  of  G.  C.  T.  Railroad  Tax  Cases.  92 
Sessions  Rep.    (4  Series)    857.  U.    S.    575;    Western    Union    Tele- 

24  Nebraska  City  v.  Nebraska,  graph  Co.  v.  Massachusetts,  125  U. 
etc.,  Co..  9  Neb.  339;  2  N.  W.  Rep.  S.  530;  Cleveland,  etc.,  Co.  v. 
87o!       *"  Backus.  133  Ind.  513;  33  N.  E.  Rep. 

25  State  V.  State  Board,  57  N.  J.  421:   18  L.  R.  A.  729;   affirmed  154 
L.  516;   31  Atl.  App.  220;  27  L.  R.  U.  S.  439;   14  Sup.  Ct.  Rep.  1122. 
A.    684.      For   analogous    cases,    see 


838  OIL    AND    GAS. 

^740.     Exemption  from  taxation. 

In  Pennsylvania  boilers,  engines  and  derricks  nsed  for  the 
transportation  of  oil  and  to  aid  in  its  prodnction  are  exempt 
from  taxation  by  statute.'^  And  so  of  companies  transporting 
natural  gas  to  the  public  are  exempt  as  to  local  taxes,  being  a 
public  corporation.-'  Pipes  of  natural  gas  company  laid  in  tbe 
streets  are  exempt  in  this  State.'^  And  the  buildings  of  a  gas 
company  are  also  exempt  from  local  taxation,  if  it  pays  taxes 
to  the  State. -^  In  Ohio  gas  wells,  pipe  lines,  pumping  stations 
and  machinery  owned  and  used  by  a  city  for  the  conveyance  of 
gas  to  be  consumed  by  it  and  its  citizens  generally  are  exempt 
by  statute  ^°  exempting  all  works,  machinery,  pipe  lines  and 
fixtures  belonging  to  any  to^vn  or  city  and  used  exclusively  for 
testing  and  lighting  such  town  or  city.^^  In  California  inas- 
much as  the  franchise  of  a  gas  company  is  asSl^sed  as  a  whole,'" 
pipe  lines  running  through  a  county  to  supply  people  of  another 
county  are  not  subject  to  local  taxation,  for  the  reason  that  such 
pipe  line  is  not  a  franchise,  being  only  a  mere  right  of  way.'^ 
Property  not  used  for  a  public  purpose,  as  a  house  for  a  tenant, 

26  Mellon  V.  Alleghany  Co.,  3  Pa.  for  the  purpose  of  furnishing  prop- 
Dist.  Ct.  Rep.  422.  er  water  to  the  public  shall  be  ex- 

27  St.  Marys  Gas  Co.  v.  Elk  Co.,  enipted  from  local  taxation  will  be 
191  Pa.  St.  458;  43  Atl.  Rep.  321;  liberally  construed  in  favor  of  the 
Ridgeway  Light,  etc.,  Co.  v.  Elk  conlpan3^)  Brush  Electric  Light 
Co.,  191  Pa.  St.  465;  43  Atl.  Rep.  Co.  v.  Philadelphia,  8  Pa.  Dist.  Rep. 
323;    Mellon    v.    Alleghany    Co.,    3  231. 

Pa.  Dist.   Rep.  422.  The   same   rule   prevails    in    New 

28  Pittsburgh's  Appeal,  123  Pa.  York  as  to  taxing  locally  the  value 
St.  374;  16  Atl.  Rep.  621;  Coots-  of  the  franchise.  People  v.  Brook- 
ville  Gas  Co.  v.  West  Chester  Co.,  lyn  Assessors,  19  N.  Y.  App.  Div. 
97  Pa.  St.  476.  599;  46  N.  Y.  Supp.  388. 

29  Schuylkill  Co.  v.  Citizens'  Gas  so  Rev.  Stat.,  Sec.  2732. 

Co..   148  Pa.   St.   162;   23  Atl.  Rep.  si  Toledo   v.   Hosier,    54   Ohio    St. 

1055;    West,    etc.,    Co.    v.    Philadel-  418;    35   Ohio  L.   J.   215;    43  N.   E. 

phia,   3   Pa.   Dist.   Rep.   52;    Spring  Rep.   583. 

Brook,    etc.,    Co.   v.    Schadt.    Co.,    3  .'!2  San   Jose   v.   January,    57    Cal. 

Lack   L.   News   170.      (In   this   case  eti. 

it    was    held    that    the    rule    which  ss  Spring  Valley  Waterworks  Co. 

measures      the      extent     to      which  v.  Barber,  99  Cal.  36 :  33  Pac.  Rep. 

property  used  by  a  water  company  735;    21   L.  R.  A.  416. 


TAXATION.  839 

is  not  exempt  from  taxation  in  Pennsylvania ;  ^*  even  houses 
of  the  workingmen  of  the  company  owned  by  it  are  not  ex- 
empt.^^ 

§741.     Taxes  on  leases  and  minerals. 

If  there  is  no  covenant  on  the  part  of  the  lessee  to  pay  the 
taxes  on  the  landowner's  interest  in  the  premises,  he  is  not 
hound  to  do  so,^*^  unless  same  statute  especially  fixes  that  burden 
upon  him.^"  The  lessor  pays  the  value  of  his  own  interest  in 
the  land ;  and  the  lessee  the  value  of  his  interest  in  them  under 
the  lease,  which  includes  the  improvements  he  has  put  upon 
the  land  premises  in  the  operation  of  them  under  the  lease."'' 
In  no  event  can  the  land  be  assessed  higher  by  reason  of  the 
two  interests  being  owned  by  two  persons  than  if  they  were 
owned  by  one  of  them.^''  When  the  entire  premises  is  owned  by 
one  person  the  value  of  the  mineral  underneath  the  surface 
cannot  be  assessed  separate  and  apart  from  the  landowner's 
remaining  interest  in  the  land.*"  But  the  lease  may  provide 
that  the  lessee  shall  pay  all  the  taxes  assessed  against  the  entire 
premises.  Thus  where  a  lease  of  coal  land  which  created  a 
divided  ownership  of  the  coal  and  surface  provided  that  the 
lessor  should  pay  all  taxes  on  the  leased  land,  it  was  held  that 
the  lessee  was  liable  for  the  taxes  assessed  u|X)n  the  lands  while 
in  possession  and  exploring  them,  though  no  ore  was  found  and 
the  lease  was  subsequently  declared  forfeited.*^  A  covenant 
by  the  lessee  to  pay  taxes  does  not  cover  a  local  municipal  assess- 

34  iScliuylkill  County  v.  Citizens'  Storey  County.  1  Xev.  105 ;  Flory 
Gas  Co.,  148  Pa.  St.  162;  23  Atl.  v.  Heller,  1  Monaghan  (Pa.)  478; 
Rep.  1055.  Miles  v.  Delaware,  etc.,  Co.,  140  Pa. 

35  West  Chester  Gas  Co.  v.  dies-  St.  62.3;  21  Atl.  Rep.  427;  Wood- 
ter  Co.,  30  Pa.  St.  232;  Ridgeway  ward  v.  Delaware,  etc.,  Co.,  121  Pa. 
Light  and  Heat  Co.  v.  Elk  Co.,  St.  344;  15  Atl.  Rep.  622;  State 
supra.  V.  Moore.    12   Cal.   56. 

se  Sanderson  v.  City  of  Scranton,  39  Logan   v.    Washington    Co..    20 

105  Pa.  St.  469;  Delaware,  etc.,  Co.  Pa.    St.    373;    City   of    Scranton   v. 

V.  Sanderson.  109  Pa.  St.  583.  Gilbert.   16  W.  N.  C.    (Pa.)    28. 

37  Chevington  &  Bum  Co.  v.  Lew-  40  City    of    Scranton    v.    Gilbert, 

is,   10  W.  N".  C.    (Pa.)    196.  16  W.  k  C.    (Pa.)    28. 

38Hecksher  v.  Sheafer.   17  W.  N.  4i  Gribbens  v.  Atkinson,  64  Mich. 

C.     (Pa.)     323;    Hale,    etc.,    Co.    v.  351 ;  31  N.  W.  Rep.  570. 


840  OIL    AND    GAS. 

ment  to  defray  the  cost  of  sewer,  or  the  payment  for  the  cost  of 
grading  a  street.*"  Where  a  party  was  seized  of  what  is  called 
in  Pennsylvania  unseated  land  subject  to  a  mineral  reservation 
of  oil  and  mineral  rights,  it  was  held  that  there  was  no  such 
a  personal  obligation  of  the  owner  to  pay  taxes  as  rendered  him 
liable  to  the  owners  of  the  oil  or  mineral  rights  for  taxes  paid 
by  him  to  prevent  a  sale,  there  being  no  snch  a  community  of 
interest  between  them  as  implied  a  promise  to  pay.*^  After 
mineral  has  been  severed  from  the  soil  it  becomes  the  personal 
property  of  the  lessee,  and  is  taxable  to  him.*^  Where  a  statute 
provided  that  the  person  in  possession  of  real  estate,  whether  he 
held  its  fee  simple  or  as  a  life  estate,  should  be  deemed  the  own- 
er for  the  purpose  of  taxation,  it  was  held  that  a  conveyance  by 
the  owners  of  land  of  the  oil  and  gas  to  a  third  person,  upon  con- 
dition that  the  grantee  pay  a  certain  amount  of  money  to  the 
grantors  within  a  specified  time  after  the  completion  of  the 
well  on  the  land,  and  providing  that  if  the  money  was  not  paid 
within  that  time  the  grant  should  be  void,  that  the  right  thus 
given  was  taxable  to  the  grantee  as  real  estate.*^  In  such  an 
instance  an  assessment  of  the  lessee's  or  grantee's  interest  as 
personal  property  is  void.***  But  where  a  statute  provides  for 
the  taxation  of  mineral  in  place  the  same  as  land,  oil  and  gas 
in  the  ground  cannot  be  taxed  to  the  person  who  has  acquired 
the  right  to  drill  for  them  for  a  certain  time,  and  who  is  to 
pay  a  specified  amount  of  them  as  royalty.*^  A  tax  law  provid- 
ing that  the  words  personal  property  shall  include  all  fixtures 

42  Pettibone  v.  Smith,  150  Pa.  St.  takes  an  estate  in  the  land  that  is 

118;    24   Atl.    Rep.    693;    Delaware,  assessable  as  such.     Moore's  Appeal, 

etc.,  Co.  V.  Von  Storch,  196  Pa.  St.  4    Pa.    Dist.    Rep.    703. 

102;   46  Atl.   Rep.  375.  -is  State  v.  Low,  46  W.  Va.   451; 

43Neill  V.  Lacy,  110  Pa.  St.  294;  33   S.  E.  Rep.   271. 

1  Atl.  Rep.  325;   Powell  v.  Lantzy,  46  Carter  v.  County  Court,  45  W. 

173  Pa.  St.  543;   34  Atl.  Rep.  450.  Va.  806;   32   S.  E.  Rep.  216;  43  L. 

44  Forbes  v.  Gracey,  94  U.  S.  762.  R.  A.  725. 

In  Pennsylvania  it  has  been  held  47  Jones  v.  Wood.  2  Ohio  Dec.  75; 

that  a  lessee's  estate  is  not  assess-  9   Ohio  Cir.   Rep.  560;    6  Ohio  Cir. 

able  as  land  conveyed  to  a  grantee;  D«<?.    538.   reversing    1    Ohio    N.    P. 

but  Avhere  the  lessee  is  in  fact  the  155;    Moore's    Appeal,    4    Pa.    Dist. 

grantee   of  an   interest  in  the  coal.  Rep.  703. 
oil    or   gas    underlying    a   tract,   he 


TAXATION.  8-11 

attached  to  land,  not  included  in  the  valuation  of  such  land  as 
entered  upon  the  proper  tax  duplicate,  all  appliances  used  in 
producing  oil,  such  as  pump,  tanks,  boilers,  are  taxable  as 
personal  property.**  Coal  in  place  belonging  to  one  not  o^vning 
the  surface  under  which  it  lies  may  be  assessed  as  land  apart 
from  the  surface.'*''  And  the  word  "  held  "  in  a  statute  pro- 
viding that  when  coal  or  gas  privileges  are  "  held  by  a  party  or 
parties,  company  or  association,  exclusive  of  the  surface,  the 
same  shall  be  assessed  separately  to  such  "  party  or  association,^" 
must  be  construed  as  "  owned,"  and  such  privileges  or  interest 
cannot  be  assessed  to  a  mere  lessee.^^ 

48  Carter  v.  County  Court,  supra.  ci  United  States  Coal,  etc.,  Co.  v. 

49  Consolidated  Coal  Co.  v.  Baker,       Randolph  County  Court,  38  W.  Va. 
135  III.  545;  26  N.  E.  Rep.  651.  201;   18  S.  E.  Rep.  566. 

50  Acts  of  W.  Va.,  1891,  Chap.  36, 
Sec.   4. 


CHAPTER  XXXIII. 

MISCELLANEOUS. 

§742.  Artificial  gas  statutes  do  not  relate  to  natural  gas. 

§742.  Larceny  of  gas. 

§744.  "  Shut  ofl  gas,"  meaning. 

§745.  Contract  for  purchase  of  oil. 

§746.  Term  "  fire  proof  oil  "  as  a  trademark. 

§747.  Gas  company's  liability  for  supplies. 

§748.  Gas  not  a  necessary  of  life. 

S742.     Artificial  gas  statutes  do  not  relate  to  natural  gas. 
^  4 

Statutes  relating  to  the  manufacture  and  supply  of  gas  en- 
acted before  natural  gas  was  discovered  in  this  country,  as  a 
rule  do  not  apply  to  natural  gas  companies.  In  ]S«^ew  York 
it  has  been  held  that  a  statute  enacted  in  1890,  authorizing 
the  formation  of  corporations  for  manufacturing  and  supplying 
gas  for  lighting  streets  and  for  buildings,  and  providing  a 
penalty  if  they  refused  to  supply  gas  to  consumers  on  applica- 
tion, did  not  apply  to  natural  gas  companies  incorporated  under 
the  "  business  corporations  law  "  of  1875.*^ 

§743.     Larceny  of  gas. 

To  take  artificial  gas  from  a  gas  company  with  a  felonious 
intent  is  larceny,   even  though  the  taker  take  it  on  his  o^vn 

*i  Wilson    V.    Tennent,    65   N.   Y.  6,  Sec.  60,  of  New  York,  a  company 

Supp.    852;    affirmed    61    App.   Div.  may    be    organized    to    supply    both 

100;  70  N.  Y.  St.  Rep.  2.  gas  and  electricity;  and  under  Laws 

A     corporation     organized    under  1892,   Ch.  688,   Sec.  32,  a  gas  com- 

the  general  corporation  law  of  New  pany  may  enlarge  its  powers  so  as 

Jersey  cannot  conduct  business  as  a  to    manufacture    and    supply    elec- 

gas    company.      Richards   v.   Dover,  tricity.     People   v.    Rice,    33   N.    E. 

(N.  J.  L.)  ;  39  Atl.  Rep.  705.  Rop.  846;  138  N.  Y.  151. 

Under  Laws  1890,  Ch.   566,  Art. 

842 


MISCELLANEOUS.  843 

land  by  secretly  opening  the  gas  company's  service  pipe  laid 
therein  for  the  purpose  of  supplying  his  house  with  gas.  Thus 
to  insert  a*  pipe  in  the  service  pipe  throngh  which  the  gas  flows 
to  the  burner  direct  and  not  through  the  meter,  with  the  felon- 
ious intent  to  take  it,  and  not  pay  for  the  same,  is  a  larceny, 
tJiere  being  a  sufficient  severance  of  the  gas  at  the  point  of  junc- 
tion of  the  connecting  pipe  with  the  entrance  pipe  to  constitute 
an  asporation.  It  is  immaterial  whether  the  service  pipe  is  the 
property  of  the  taker  or  of  the  company."  If  the  pipe  be  kept  full 
all  the  time,  although  the  gas  is  repeatedly  cut  off  at  the  point  of 
consumption,  there  is  a  continuous  taking,  and  not  a  series  of 
separate  takings ;  and  there  will  be  a  continuous  taking,  even 
though  the  pipe  has  not  been  kept  full,  for  it  is  usually  substan- 
tially all  one  transaction.^ 

§744.     "  Shut  off  gas,"  meaning. 

The  printed  regulations  of  a  gas  company  provided  that  "  the 
person  sent  to  attend  [to  examine  for  leaking  gas]  is  authorized 
to  shut  off  the  gas."  In  an  action  for  personal  injuries  brought 
against  a  gas  company,  caused  by  an  explosion  of  leaking  gas, 
it  was  held  that  the  gas  company  could  show  by  parol  evidence 


2  Regina  v.   White.  20  E.   L.  and  is     subject     to     private    ownership, 

Eq.  585;  17  Jur.  536;  3  Car.  and  K.  there   is   no   reason   why   the   felon- 

363;  6  CoxCr.  Cas.  213;  Dears.  C.  C.  ious    taking    of    it    from    the    pipe 

203;  22  L.  J.    (N.  S.)    123;   Beale's  should    not    be    a    larceny,    even    a 

Cas.   506 ;    Commonwealth  v.   Shaw,  taking   from    the   pipe    in   the   well 

4    Allen    308;    81    Am.    Dec.    706;  should  be  so  considered.     But  a  tak- 

Beale's  Cas.  506 ;  Regina  V.  Mitchell,  ing   from   the    earth,   by   drilling   a 

22  Gas  J.  137;  Regina  v.  Jenkins,  5  well  would  be  a  mere  trespass.    For 

Gas   J.   214;    State  v.   Wellman.   34  larceny    of    water,     see    Ferens    v. 

Minn.   221.     See   also   Phoenix   Gas-  O'Brien.   11  Q.  B.  Div.  21;   15  Cox. 

light,   etc.,   Co.   V.    Shillits,    19    Gas  C.  C.  332. 
J.  848.  As   to   such    a    concealment   of   a 

•"  Queen   v.   Firth,   L.  R.   1   Crown  fraudulent    taking    of    gas    as    will 

Cas.  Res.   172;   People  v.  Wilber,  4  prevent   the   Statute  of  Limitations 

Park.    Cr.    Rep.    19.  running,  see  Imperial  Gaslight  and 

So  far  as  the  writer  knows,  there  Coke    Co.    v.    London    Gaslight   and 

are  no  decisions  concerning  the  lar-  Coke  Co.,   10  Exch.  39;   26  Ed     L. 

ceny  of  natural  gas;   but  inasmuch  and  Eq.  425;   3  Gas  J.  483. 
as    natural    gas    confined    in    pipes 


844  OIL    AND    GAS 

that  the  direction  to  '*  shut  off  the  gas  "  applied,  in  this  con- 
nection, only  to  shutting  off  gas  from  houses  and  not  from 
streets.* 

§745.     Contract  for  purchase  of  oil. 

A  refiner  of  oil,  who  purchases  of  a  dealer,  at  current 
prices,  all  the  crude  oil  he  may  need  during  a  particular  year, 
he  agreeing  to  order  more  than  a  certain  amount  per  month, 
does  not  prohibit  him  from  ordering,  at  any  time  during  the 
year,  subject  to  the  monthly  limitations,  such  an  nmount  of  oil 
as  he  may  need,  for  the  entire  year.  He  is  bound  to  withhold 
his  orders  until  he  actually  needs  the  oil ;  and  if  the  vendor 
refuses  to  fill  such  orders,  to  the  extent  of  the  amount  of  oil 
proved  to  be  needed,  he  is  liable.^ 

§746.     Term  "  fire  proof  oil  "  as  a  trademark.     . 

The  term  "  Fire  Proof  Oil  "  cannot  be  claimed  successfully 
as  a  trademark  for  an  illuminating  oil.  The  reason  is  that 
such  words  are  descriptive  of  oil,  which  is  not  inflammable,  al- 
though it  is  not  literally  proof  against  fires." 

§747.     Gas  company's  liability  for  supplies. 

A  corporation  organized  to  manufacture  and  supply  illum- 
inating and  heating  gas  may  purchase  the  right  to  use  and 
deal  in  steam-heaters,  radiating  mantels,  and  gas  consuming 
appliances,  if  such  purchases  are  advantageous  to  its  business 

4  Bartlett  v.  Boston  Gaslight  Co.,  was  taking  off  gas  from  the  leased 

117  Mass.  533.  premises   in  violation   of  the   terms 

Under  a  statute  declaring  it  un-  of  the  case;  and  it  was  held  that 
lawful  for  any  person  to  turn  ofi'  the  lessor  could  not  shut  off  the 
any  valve  belonging  to  any  person  gas,  but,  to  secure  relief,  must  re- 
furnishing gas  to  consumers  with-  sort  to  his  legal  remedy, 
out  permission  of  the  owner,  the  5  Willoek  v.  Crescent  Oil  Co.,  184 
doing  of  the  act,  without  consent.  Pa.  St.  245;  28  Pittsb.  L.  J.  (N.  S.) 
is  unlawful,  without  any  reference  35^  39  Atl.  Rep.  77. 
to  the  intent  of  the  doer.  State  v.  6  Scott  v.  Standard  Oil  Co..  106 
Moore,  27  Ind.  App.  83;  60  N.  E.  Ala.  475;  19  So.  Rep.  71;  31  L.  R. 
Rep.    955.      In   this   case   the   lessee  A.  374. 


MISCELLAXEOUS.  84o 


as  a  manufacUirer  ami  distributor  of  gas/  If  it  purchase  gas 
pipes  to  be  of  good  material  and  workmanship  and  they  are 
defective  and  with  flaws  so  gas  escai>es,  and  it  lay  such  pipes 
hi  the  soil  without  knowledge  of  the  defects  and  flaws,  it 
may  recover  damaaes  from  the  vendor,  or  recoup  them  when 
sued  for  the  price  of  the  pipes,  which  will  cover  the  cost  ol 
taking  out  the  pipes  to  replace  them  with  others,  including  the 
relaying  of  new  pipes.*' 

§748.     Gas  not  a  necessary  of  life. 

Where  a  husband  left  his  wife,  and  she  continued  to  use  gas 
in  the  house  as  usual,  it  was  held  that  he  was  not  liable  lor 
the  gas  thus  used." 

TMalone    v.   Lancaster,   etc.,    Co.,  « Smith   v.   Citizens',  etc.,   Co.,   5 

182  Pa.  St.  309;  40  W.  N.  C.  4.34;  W.  N.  C.  97.                         ,        ,     o. 

14  Lane.  L.  Rev.  321;  15  Nat.  Corp.  o  Kettening  Gas  Co.  v.  Leach,  24 

Rep.   98;    37   Atl.  Rep.   932.  Gas.   J.   503. 


APPENDIX. 

GAS  AND  OIL  LEASES  AND  AGREEMENTS.  ^ 

INDIANA. 
GRANT  OF  OIL  AND  GAS. 

IN  CONSIDERATION  of   the  sum  of Dollars,   and   the  covenants 

and  agreements  hereinafter  contained first  part,  .hereby  grant 

unto second  party,  his  heirs  or  assigns,  all  the  oil  and  gas  in  and 

under  the  following  described  premises,  together  with  %e  exclusive  right 
to  enter  thereon  for  the  purpose  of  drilling  or  operating  for  oil  or  gas; 
to  erect,  maintain  and  remove  all  structures,  pipe  lines,  and  machinery 
necessary  for  the  production  and  storage  of  oil,  gas  or  water,  namely:     A 

lot    of    land    situated    in    the    Township    of County    of in    the 

State    of bounded    and    described    as    follows containing 

acres,  more  or  less. 

The  above  gi'ant  was  made  on  the  following  terms: 

Should  oil  be  found  in  paying  quantities  upon  the  premises,  second 
party  agrees  to  deliver  to  the  first  party  in  the  pipe  line  with  which   he 

may  connect  the  well   or   wells,   the part  of   all  the   oil   saved  from 

said  premises. 

If  gas  only  is  found,  second  party  agrees  to  pay each  year  for  the 

produce  of  each  well  while  the  same  is  being  used  ofi'  the  premises,  and 
first  party  shall  ha^e  gas  free  of  expense  to  light  and  heat  the  dwellings 
on  the  premises. 

The  second  party  shall  have  the  right  to  use  sufficient  gas  or  water  to 
run  all  machinery  used  by  him  in  carrying  on  his  operations  on  said 
premises,  and  the  right  to  remove  all  his  property  at  any  time. 

If  no  well  is  drilled  within from  this  date  then  this  grant  shall 

become  null  and  void  unless  second  party  shall  pay  to  the  first  party 
for  each thereafter  such  completion  is  delayed 

IN  WITNESS  WHEREOF,  The  parties  have  hereunto  set  their  hands 

this day  of A.  D.  190.  .. 

Witness  :  -  


846 


APPEXDIX.  847 

OIL  AND  GAS  GRANT. 

IN  CONSIDERATION  of  the  sum  of Dollars,  the  receipt  of  which 

is   hereby   acknowledged first   part.. hereby   grant   unto 

second  party,  its  successors  and  assigns,  all  the  oil  and  gas  in  and  under 
tiie  following  described  premises,  together  with  the  right  to  enter  thereon 
at  all  times  for  the  purpose  of  drilling  and  operating  for  oil.  gas  and  water, 
and  to  erect  and  maintain  all  buildings  and  structures,  and  lay  all  pipe 
necessary  for  the  production  and  transportation  of  oil,  gas  and  water 
from  said  premises.  E.xcepting  and  resendng,  however,  to  first  part.. the 
part  of  all  oil  produced  and  saved  from  said  premises,  to  be  deliv- 
ered  in   the   pipe   line  with   which   second   party  may   connect   its   wells, 

namely:     All  that  certain  lot  of  land  situated  in  the  Township  of 

County   of in   the   State   of bounded   and   described   as   follows, 

to-wit : containing acres  more  or  less. 

Second   party   agi'ees,   if   gas   is   only   found,   to   pay Dollars   each 

year,  in  advance,   for  the  product  of  each   well   while  the   same  is   being 

used  off  the  premises,  and  first  party  to  have  gas  free  of  cost  to  heat 

stoves  in  dwelling  house  during  the  same  time. 

Whenever  first  part.. shall  request  it,  second  party  shall  bury  all  oil 
and  gas  lines,  and  pay  all  damages  done  to  growing  crops  by  reason  of 
burying  and  removing  said  pipe  lines. 

No  well  shall  be  drilled  nearer  than feet  to  the  house  or  barn  on 

said  premises,  and  no  well  shall  occupy  more  than  one  acre. 

In   case   no   well   is within from   this   date.,   then   this   grant 

shall   become  null   and  void,   unless  second   party  shall   pay  to   said  first 

part Dollars  in  advance  for  each thereafter  such 

is  delayed. 

The  second  party  shall  have  the  right  to  use  sufficient  gas,  oil  and  water, 
for  all  their  operations,  and  also  the  right  to  remove  all  its  property  at 
any  time,  including  the  right  to  draw  and  remove  casing 

All  covenants  and  agreements  herein  set  forth  between  the  parties 
hereto  shall  extend  to  their  successors,  heirs,  executors  and  assigns. 

IN  WITNESS  WHEREOF,  The  parties  hereto  have  hereunto  set  their 

hands  and  seals  this day  of A.  D.  19.  .. 

(Seal) 

(Seal) 

(Seal) 

STATE  OF  INDIANA, 
COUNTY    OF 

On  the day  of A.  D.  19. .,  before  me,  the  subscriber,  a 

in  and  for  said  county,  personally  appeared to  me  known  to 

be  the  person  named  in.  and  who  executed  the  foregoing  instrument,  an;! 

in  due  form  of  law  acknowledge  the  same  to  be act  and  deed,  for  th<> 

uses   and   purposes  therein   mentioned,   and   desired  that   it   might   be  re- 
corded as  such. 

Witness  my  hand  official  seal. 

(Seal) 


848  OIL    AND    GAS. 

OIL    AND    GAS    GRANT. 

IN  CONSIDERATION  of  the  sum  of Dollars,  the  receipt  of  which 

is  hereby  acknowledged first   part .  . hereby  grant.  . unto 

second  part.  .,  successors  and  assigns,  all  the  oil  and  gas  in  and  under  tiie 
following  described  premises,  together  with  the  right  to  enter  thereon  at  ail 
times  for  the  purpose  of  drilling  and  operating  for  oil.  gas  and  water,  and 
to  erect  and  maintain  all  buildings  and  structures,  and  lay  all  pipe  neces- 
sary for  the  production  and  transportation  of  oil,  gas  and  water  from  said 

premises.     Excepting  and  reserving,  however,  to  first  part.. the part 

of  all  oil  produced  and  saved  from  said  premises,  to  l)e  delivered  in  the 
pipe  line  with   which   second  party  may  connect  the   wells,   namely:      All 

that  certain  land  situate  in  the  Township  of ,  County  of ,   in 

the  State  of  Indiana,  described  as  follows,  to-wit : containing 

acres  more  or  less. 

This  grant  is  made  for  the  period  of  five  years  fi-om  this  date  and  as 
much  longer  as  oil  or  gas  is  found  in  paying  quantities  under  the  terms 
and  conditions  herein  contained. 

Second   part,  .agree. .,   if  gas  only   is   found,   to   pay Dollars   each 

year,  payable in  advance,  for  the  product  of  each  \\4ll  while  the  same 

is  being  used  oflf  the  premises,  and  first  part.. to  have  gas  free  of  cost,  at 
the  well,  for  domestic  purposes  on  the  farm. 

Whenever  first  part,  .shall  request  it.  second  part,  .shall  bury  all  oil  and 
gas  lines,  and  pay  all  damages  done  to  growing  crops  bj'  reason  of  burying 
and  removing  said  gas  lines. 

No  well  shall  be  drilled  neared  than feet  to  the  house  or  barn  on 

said  premises,  and  no  well  shall  occupy  more  than  one  acre.  The  first 
part,  .shall  fully  use  and  enjoy  said  premises  for  farming  purpcses,  except 
such  parts  as  may  be  necessary  for  said  operations. 

In  case  no  well  is within from  this  date,  then  this  grant  shall 

become  null  and  void,  unless  second  part .  .  shall  pay  to  said  first  part .  . 
in  advance  for  each thereafter  such is  delayed. 

Payments  to  be  made  as  herein  provided  may  be  made  direct  to  first 
part,  .or  deposited  to  first  party's  credit  in 

It  is  understood  and  agreed  between  the  parties  hereto,  that,  second 
part,  .by  giving  to  first  part,  .thirty  days'  notice  in  writing  of  a  desire  to 
surrender  this  grant,  may  do  so  upon  the  payment  to  first  part.. of  the 
sum  of  one  dollar  and  releasing  the  same  of  record,  and  thereby  be  released 
from  all  further  liabilities  hereon. 

The  second  part.. shall  have  the  right  to  use  sufficient  gas,  oil  and 
water,  for  all  operations  hereunder,  and  also  the  right  to  remove  all 
property   at   any  time,   including  the   right   to   draw   and   remove   casing. 


All    covenants    and    agreements    herein    set    forth    between    the    parties 
hereto  shall  extend  to  their  successors,  heirs,  executors  and  assigns. 


APPENDIX.  ^'^'^ 

In   Witness    Whereof,   the    parties   have   hereunto    set   their   hands   and 

seals,  this day  of A.  D.  190... 

Witness  : 


(Seal) 
(Seal) 
(Seal) 
(Seal) 


STATE  OF  INDIANA,  COUNTY  OF ,  ss : 

Before    me     the    undersigned    Notary    Public,    personally    appeared    the 

within    named and    severally    acknowledged    the    execution    ot 

the  foregoing  instrument  to  be free  act  and  deed 

Witness   my  hand   and  official   seal,  this day   of ^^^■••^g^^^) 

Notary  Public. 
Commission  expires 190-  •• 

STATE  OF  INDIANA,  COUNTY  OF ss: 

Before    me     the    undersigned    Notary    Public,    personally    appeared    the 

wifhin    named and    severally    acknowledged    the    execution    ot 

the  foregoing  instrument  to  be free  act  and  deed^ 

Witness  my  hand  and  official  seal,  this day  ot i-iu.  .. 


.... (Seal) 
Notary  Public. 


Commission  expires 190. 


OIL   OR   GAS   LEASE. 


,     . ,  •                1       ^t  A    n    1 QO        bv  and  between 

THIS  LEASE,  Made  this day  of A.  U.  IJU.  .,  oy  a 

of  the  County  of and  State  of  Indiana  of  the  first  part. 

and  Tlie  Hancock  Oil  Company  of  the  second  part, 

WITNESSETH,  That  the  said  part,  .of  the  first  part,  in  consideration  o 

$1.00  in  hand  paid,  the  receipt  of  which  is  hereby  -"^--^^^f;-;";^^  '^^ 

stipulations,  rents  and  covenants  hereinafter  contained,  on  the  part  of  Uie 

aMparty  of  the  second  part,  his  executors,  administrators  and  assigns 

to  be   pakl    kept  and  performed,  have  granted,  demised  and  let  unto  Uie 

aid  pa  ty  of  The  second  part,  his  executors,  administrators   and  ass  gns^ 

th     sole   and   only   purpose   of  drilling  and   operating   for   Petrc.  um 

Oil   or  Gas  for   the  term   of years  with  the  privilege  ^i^  ■-■  ■  J'^^^ 

?h  re  fter  on  the  same  terms  and  conditions  at  the  option  of  the  les.e. 
s'd  lessee  to  give  thirty  day's  notice  in  writing  before  t^-  exp-ti^^^^^^^^ 
said  year  of  its  intention  to  avail  itself  of  said  option,  or  as  long  there 
Tf  er  as  Oil  or  Gas  is  found  in  paying  quantities,  all  that  certain  tract  of 

and    situated    in Township .County,    State    of    Indian.    Bei^ 

the  .Containing acres,  more  or  less;  excepting  and  reseiv 

ing'  therefrom acres   around   the   buildings   «^  ^-'^/^-^^^Virbe 

which  there   shall  be  no  wells  drilled;   the  boundaries   of  which   shall  be 
designated  and  fixed  by  the  part,  .of  the  first  part. 

The  said  second  party  hereby  agrees  in  consideration  of  the  W  lease  of 
the  above  described  premises,  to  give  said  first  part  •  .  "^fjf  ^J^^^^;,^ 
of  all  the  oil  or  mineral  produced  and  saved  from  said  premises,  except  for 


850  OIL    AND    GAS. 

operating  purposes  on  the  premises,  delivered  in  tanks  or  pipe  lines  to  the 

credit  of  first  part...     And  further  agrees  to  give  $ per  annum  for 

the  gas  from  each  and  every  well  drilled  on  the  above  described  premises, 
in  case  the  gas  be  found  in  quantity  to  transport  off  the  above  described 
premises,  and  convey  to  market,  which  the  second  party  is  to  be  the  sole 
judge  thereof.  The  said  second  party  not  to  unnecessarily  disturb  growing 
crops  thereon,  or  the  fences. 

Said  second  party  has  the  right,  which  is  hereby  granted  him,  to  enter 
upon  the  above  described  premises  at  any  time  for  the  purpose  of  mining 
or  excavating,  and  the  right  of  way  to  and  from  the  place  .of  mining  or 
excavating  and  the  right  to  lay  pipe  lines  for  the  purpose  of  conveying  or 
conducting  water,  steam,  gas,  or  oil  over  and  across  said  premises,  and 
also  the  right  to  remove  at  any  time  any  or  all  machinery,  oil  well  supplies 
or  appurtenances  of  any  kind  belonging  to  the  said  second  party 

The  party  of  the  second  part  agrees  to  commence  one  well 

from  the  date  hereof  (unavoidable  accidents  and  delays  excepted),  and 
in  case  of  failure  to  commence  one  well  within  such  time,  the  party  of  the 
second  part  hereby  agrees  to  pay  thereafter  to  the  part,  .of  the  first  part 

for  any  future  delay,  the  sum  of dollars  per  annum  as  a  rental  on 

the  same  thereafter  until  a  well  is  commenced  or  the  premises  abandoned, 

payable   at and   the   part.. of  the   first   partj^hereby   agree.. to 

accept  such  sum  as  full  consideration  and  payment  for  such  yearly  delay 
until  one  well  shall  be  commenced,  and  a  failure  to  commence  one  well  or 
to  make  any  of  such  payments  within  such  time  and  at  such  place  as 
above  mentioned,  renders  this  lease  null  and  void,  and  neither  party 
hereto  shall  be  held  to  any  accrued  liability,  otherwise  to  be  and  remain 
in  full  force  and  virtue. 

It  is  understood  by  and  between  the  parties  to  this  agreement  that  all 
conditions  between  the  parties  hereto  shall  extend  to  their  heirs,  executors 
and  assigns. 

IX  WITNESS  WHEREOF,  We,  the  said  parties  of  the  first  and  second 
part,  have  hereto  set  our  hand  and  seals  the  day  and  year  first  above 
written. 

(Seal) 

(Seal) 

THE COMPANY, 

Attest : ; By 

Secretary.  President. 

STATE  OF  INDIANA. 
COUNTY  OF 


Before  me,  the   undersigned,   a  Notary  Public   in  and  for  said    county. 

this day of 190.  .,     personally     appeared and 

the  Hancock  Oil  Company  by  its  offieers.  William  C.  Dudding.  President, 
and  Ephraim  Marsh,  Secretary,  and  acknowledged  the  execution  of  the 
foregoing  agi-eement.  >. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  Notarial 

Seal,  this day  of ,  190.  ..  

Notary  Public. 


APPENDIX.  °^^ 

AGREEMENT  TO  DRILL  WELL. 


AGREEMENT  made  and  concluded  this day  of .  .      .  .1899  by  and 

between  The  Rowland-Zeighvr   Oil   Co.,   of  Montpelier,   Ind.,   party  of  the 

first  part,  and of party   of  the  second  part. 

WITNESSETH,   the   first  part  hereto  agiees  to   furnish   one  wood  ng, 

the    necessary    drive    pipe   and    casing    on farm    in    Section.  ...  ^. in 

h      Township    of...      .County    of in    the    State    of    Indiana.     Also 

shot    rods    pumping  outfit  and  tank  provided  well  proves  a  producer  and 

he  'second  party  hereto,  in  consideration  of cents  per   foot    (which 

sum  s  to  b'e  paid  to  second  part  by  first  part  when  Job  is  completed  m 
arordance  with  the  contract  hereinafter  set  forth)  agrees  at  his  own 
rand  risk,  furnishing  all  else  that  is  necessary  "/-P-^ 
pletion  of  an  oil  or  gas  well;  and  to  effectually  shut  off  all  lesh  water 
C t"kin.  the  casing  entirely  tight,  a  test  of  the  casing  to  be  made  by 
use  of  the^Device  known  as  the  casing  tester,  by  first  part  on- notice  from 
second  part  that  the  well  is  on  top  of  the  sand,  and  to  dril  said  well  into 
the  Trenton  rock  to  any  depth  that  the  first  part  elects,  not  to  exceed  one 
uindre^fe^^^  to  cleanU  after  shot,  on  the  following  day  f roni  that  on 
'^ch  the  sh  t  is  put  in.  fit  up  and  start  said  well  to  pumping  m  first-class 


^•ovided  the  well  should  prove  a  gas  produ^r,  to  pack  the  ^^^^ 
material  furnished  bv  first  part  for  same,  and  making  it  an  entiiely  tight 
™r  And  provided,  further,  that  if  neither  gas  or  oil  is  found  m  paying 
•ouantity  and  the  first  part  would  want  the  piping  and  casing  pulled  out 
rsa  d  well,  the  second'party  hereto  agrees  to  plug  the  well  in  accordan  e 
with  the  la;  and  pull  the  piping  without  further  <^^^^^^f^^^ 
the  first  part  must  pay  for  the  use  of  the   jacks  or  cutteis  if  the  same 

'"Tn'tlf event  the  second  partv  finds  it  necessary  to  have  a  water  well 
at  the  lid  Tocatn,  the  fir'st  part  agrees  to  furnish  the  necessary  casing 
for  the  same,  only. 


KANSAS 
OIL,  GAS  AND  MINERAL  LEASE. 


THIS  LEASE,    Made  between ,  party  of  the  first  part,  and 

parties  of  the  second  part,  WITNESSETH   that  m  con  id^ 
eration  of  One^DoUar,  the  receipt  of  which  is  ^^^^^f^f'  ^^' 
the    further    consideration   of   drilling   or    excavating   test   ^;^^^;^;-- 
County.  Kansas,  for  Oil,  Gas  and  other  minerals,  or  P^P-tn  gjo.     tl^^^^^^ 

minerals party   of   the   first   part  hereby   agree  w^th   P^^^   ^^^^^^ 

second   part:     That   they   shall    have   ^ ^ /^^f^/^f;/;; J  Minerals 
from  this  date  to  enter  upon  and  operate  for  Oil    Gas  and  oth 

all    that    certain    tract    of    land    in township County, 

described  as  follows,  to  wit: 


852  OIL    AND    GAS. 

Section Twp,    Range,    Acres Containing 

acres,    more    or    less,    upon    the    following    terms    and    conditions : 

Second  parties  shall  deliver  in  tanks  at  the  wells  to  the  first  party  without 
cost,  one-tenth  of  an  Oil,  produced  on  these  premises;  second  parties  shall 
also  pay  Fifty  Dollars  per  year  for  each  Gas  well  of  sufficient  capacity  to 
utilize  when  used  off  the  premises,  and  deliver  on  the  dump,  to  the  first 
party  without  cost,  one-tenth  of  all  mineral  produced  on  these  premises. 
If  Oil,  Gas  or  other  Mineral  is  found  in  paying  quantities  in  any  well 
drilled,  the  privilege  of  operating  shall  continue  as  long  as  Oil,  Gas  or 
other  Mineral  shall  be  produced  in  paying  quantities  and  when  abandoned 
tor  such  purposes  this  grant  shall  cease,  and  no  longer  be  binding  on 
either  party.  If  Gas  is  found  on  the  above  described  land  the  party  of 
the  first  part  is  to  have  same  for  domestic  purpose  free.  The  second 
party  reserves  the  right  to  remove  all  machinery  and  fixtures  placed 
thereon  by  them.  In  case  no  Oil  or  Gas  well  is  sunk  or  prospecting  for 
other  Mineral  done  on  these  premises  within  five  years  from  this  date 
this  lease  shall  become  absolutely  null  and  void  unless  the  second  parties 
shall  from  year  to  year  continue  this  lease  by  paying  or  depositing  to  the 

credit  of  the  first  party  each  year  in  advance Dollars  at  the 

until  a  well  is  completed  or  other  prospecting  done  on  ihe  premises 

Party  of  the  first  part  further  agrees  that  for  and  in  consideration  of  the 
considerations  and  covenants  above  contained  that  second  party  at.  .option 
may  any  time  within year  from  this  date  purchase  the  above  de- 
scribed property  ty  paying Dollars  per  acre  and  first  party  at  such 

payment  agrees  to  deliver  deed  of  above  property  free  from  all  liens  and 
encumbrances  whatsoever.  It  is  understod  by  and  between  the  fir.st  and 
second  parties  to  this  agreement  that  all  the  conditions  between  the  parties 
hereto  shall  extend  to  their  heirs,  executors  and  assigns. 

IN  WITNESS  of  which  we  hereunto  set  our  hands  and  seal  this  the.  .  .  . 

day  of A.  D.  190... 

(Seal) 

Witnesses  :  ( Seal ) 

(Seal) 

(Seal) 

STATE  OF  KANSAS, 
COUNTY  OF 

Be  It  Remembered,     That  on  this day  of 190. .,  personally 

appeared  before  me personally  known  to  me  to  be  the  persons 

who  executed  the  foregoing  instrument  and  said  persons  acknowledged  the 
execution  of  the  same. 

In  Witness  Whereof  I  hereunto  subscribe  my  name  and  affix  my  official 
^pal.  

My  Commission  expires  on  the day  of 190.  .. 

OIL  AND  GAS  LSTASE. 

IN  CONSIDERATION  of  the  sum  of  One  Dollar,  the  receipt  of  which  is 
hereby  acknowledged,  and  of  the  covenants  and  agreements  hereinafter 
contained first  party,  hereby  grant  unto  Lanyon  Zinc  Company, 


APPENDIX.  853 

a  New  Jersey  Corporation,  second  party,  successors  and  assigns,  all  the 
Oil  and  Gas  in  and  under  the  following  described  premises,  together  with 
the  right  to  enter  thereon  at  all  times  for  the  purpose  of  drilling  and 
operating  for  oil,  gas  or  water,  to  erect,  maintain  and  remove  all  build- 
ings, structures,  pipes,  pipe  lines  and  machinery  necessary  for  the  pro- 
duction and  transportation  of  oil,  gas  or  water. 

PROVIDED:  That  the  first  party  shall  have  the  right  to  use  said 
premises  for  farming  purposes  except  such  part  as  is  actually  occupied  by 

second  party,  namely:      A  lot  of  land  situated  in  the  township  of 

County  of in  the  State  of Section  number Town- 
ship number Range  number containing acres,  more 

or  less. 

THE   ABOVE   GRANT  WAS   MADE  ON  THE  FOLLOWING   TERMS  : 

1st.     Second  party  agrees  to  drill  a  well  upon  said  premises,  within  one 

year  from  this  date,  or  thereafter  pay  to  first  party Dollars  annually 

until  said  well  is  drilled,  or  the  property  hereby  granted  is  conveyed  to 
the  first  party. 

2nd.  Should  Oil  be  found  in  pajdng  quantities  upon  the  premises, 
second  party  agrees  to  deliver  to  first  party  in  tanks  or  in  the  pipe  line 
with  which  it  may  connect  the  wells,  the  one-tenth  part  of  all  the  oil  pro- 
duced and  saved  from  said  premises. 

3rd.  Should  Gas  be  found,  second  party  agrees  to  pay  to  first  party 
Fifty  Dollars  annually  for  every  well  from  which  Gas  is  used  off  the  said 
premises. 

4th.  The  first  party  shall  be  entitled  to  enougli  Gas  free  of  cost  for 
domestic  use  in  the  residence  on  said  premises  as  long  as  second  party 
shall  use  Gas  off  said  premises  under  this  contract,  but  shall  lay  and 
maintain  the  service  pipe  at  his  own  expense  and  use  said  Gas  at  his  own 
risk.  The  said  party  of  the  second  part  further  to  have  the  privilege  of 
excavating  for  water  and  of  using  sufficient  water.  Gas  and  Oil  from  the 
premises  herein  leased  to  run  the  necessary  engines  for  the  prosecution 
of   said  business. 

5th.  Second  party  shall  buiy,  when  requested  to  do  so  by  the  first  party, 
all  Gas  lines  used  to  conduct  Gas  off  said  premises  and  pay  all  damages 
to  timber  and  crops  by  reason  of  drilling  or  the  burying,  repairing  or 
removal  of  lines  of  pipe  ovei'  the  said  premises. 

6th.     No  well  shall  be  drilled  nearer  than feet  to  any  building  now 

on  said   premises,   nor   occupy  more  than   one   acre. 

7th.  Second  party  may  at  any  time  remove  all  his  property  and 
re-convey  the  premises  hereby  granted  and  thereupon  this  instrument  shall 
be  null  and  void. 

8th.  A  deposit  to  the  credit  of  lessor,  his  heirs,  executors  or  assigns 
in Bank,  to  the  account  of  any  of  the  money  payments  herein  pro- 
vided for.  shall  be  a  payment  under  the  terms  of  this  lease. 

9th.  If  no  well  shall  be  drilled  upon  said  premises  within  five  years 
from  this  date,  second  party  agrees  to  re-convey,  and  thereupon  this 
instrument   shall   be   null   and   void. 

10th.  A  failure  by  second  party  to  comply  with  any  of  the  above 
conditions  shall  render  this  lease  pull  and  void. 


854  OIL    AND    GAS. 

IN  WITNESS   WHEREOF,  the  parties  liereimto  have  set  their  hands 

and   seal    this day   of A.   D.,    190... 

Signed,  sealed  and  delivered  in  the  presence  of 


(Seal) 

(Seal) 

(Seal) 

COMPANY. 

;  '  By (Seal) 

COUNTY  OF ) 

STATE  OF  KANSAS,  C  ss 

BE  IT  REMEMBERED,     That  on  the day  of A.  D.,   190. ., 

before    me   a    Notary    Public    for    the    County    and    State    aforesaid    came 

personally  known  to  me  to  be  the  same  persons  who  executed 

the  foregoing  instrument  and  said  persons  duly  acknowledge  the  execu- 
tion of  the  same. 

Witness  my  hand  and  official  seal  the  day  and  year  aforesaid. 

My  commission  expires  the day  of A.  D.,   190.  .. 

,  Notary  Public. 

OHIO 
OIL  AND   GAS  LEa\SE. 

IN  CONSIDERATION  of  the  sum  of Dollars,  the  receipt  of  which 

is   hereby   acknowledged first    part .  .  hereby    grant   unto 

second  party,  successors  or  assigns,  all  the  oil  and  gas  in  and  under 

the  following  described  premises,  together  with  the  right  to  enter  thereon 
at  all  times  for  the  purpose  of  drilling  and  operating  for  oil.  gas  or  water, 
and  to  erect  and  maintain  all  buildings  and  structures,  and  lay  all  pipes 
necessary  for  the  production  and  transportation  of  oil,  gas  or  water  from 
or  over  said  premises.     Excepting  and  reserving,  however,  to   first   party 

the part   of  all   oil   produced  and   saved   from   said  premises,    to   be 

delivered  in  the  pipe  line  with  which  second  party  may  connect wells, 

_ namely:     All  that  certain  lot  of  land  situated  in  the  Township  of 

County    of in   the   State   of bounded   and   described  as   follows, 

to-wit :    ' 

To  have  and  to  hold  the  above  premises,  for  the  said  purposes  only,  for 

and  during  the  term  of  twelve  years,    from  the  date  hereof,  and  as 

nnich  longer  as  Oil  or  Gas  shall  be  found  in  paying  quantities. 

If  gas  only  is  found,  second  party  agrees  to  pay dollars  each  year, 

in  advance,  for  the  product  of  each  well  while  the  same  is  being  sold  off 
the  premises,  the  first  party  to  have  gas  free  of  cost  at  the  well  to  heat 
stoves  in  dwelling  house   during  the  same  time. 

Whenever  first  party  shall  request  it,  second  party  shall  bury  all  oil 
and  gas  lines,  and  pay  all  damages  done  to  growing  crops  by  reason  of 
burj'ing  and  removing  said  pipe  lines. 

No  w^ell  shall  be  drilled  nearer  than feet  to  the  house  or  barn  on 

said  premises,  and  no  well  shall  occupy  more  than  one  acre. 


APPETs^DIX.  855 

In  case  no  well  is  completed  within from  this  date,  then  this  grant 

shall  become  null  and  void,  unless  second  party  shall  pay  to  the  said  first 
party dollars  in  advance  'for  each  year  such  completion  is  delayed. 

The  second  party  shall  have  the  right  to  use  sufficient  gas,  oil  or  water  to 
run  all  necessary  machinery  for  operating  said  wells,  and  also  the  right  to 
remove  all  ot  his  property  at  any  time. 

It  is  expressly  stipulated  and  agreed  that  the  party  of  the  second  part 
may,  at  any  time  in  its  option,  in  consideration  and  payment  of  one 
dollar  to  the  party  of  the  first  part,  his  heirs  or  assigns,  surrender  and 
cancel  this  lease  and  terminate  all  right  and  rescind  all  obligations  of 
either  and  all  of  the  parties  hereto,  their  successors,  heirs  or  assigns. 

It  is  understood  between  the  parties  to  this  agreement  that  all  conditions 
between  the  parties  hereunto  shall  extend  to  their  heirs,  excutors  and 
assigns. 

IN  WITNESS  WHEREOF,  the  parties  hereto  have  hereunto  set  their 
hands  and  seals  this day  of A.  D.,  190.  .. 

Signed,   sealed  and  delivered  in  the  presence  of 


..  (Seal) 

(Seal) 

(Seal) 

STATE  OF ,   COUNTY,  SS: 

Before   me,    ,   a in  and   for   said  Coimty   and 

State,  personally  appeared and  acknowledged  the  execution  of 

the  within  lease  to  be voluntary  act  and  deed. 

WITNESS,     My  hand  and Seal,  this day  nf 190 .. . 

(Seal) 

OIL  AND  GAS  LEASE. 

AN   AGREEMENT,    Made    the day    of A.    D.,    190.. between 

of  the County  of and  State  of Lessor,  .and 

of Lessee.  .. 

WITNESSETH,  That  the  lessor,  in  consideration  of  ONE  DOLLAR, 
the  receipt  of  which  is  hereby  acknowledged,  and  of  other  valuable  con- 
siderations  do.. hereby  demise,   grant   and    let   unto   the   lessee heirs 

and  assigns,  all  the  oil  and  gas  in  and  under  the  following  described  tract 
of  land,  and  also  the  said  tract  of  land  for  the  purpose  and  with  the 
exclusive  right  of  operating  thereon  for  said  oil  and  gas,  together  with 
the  right  of  way,  the  right  to  lay  pipes  over,  to  use  water  from,  and  also 
the  right  to  remove,  at  any  time,  all  property  placed  thereon  by  the  lessee. . 

which  tract   of  land  is  situated   in  the of County  of and 

State  of and  is  bounded  and  described  as  follows,  to-wit: 

To  have  and  to  hold  the  same  imto  the  lessee,  .heirs  and  assigns  for  the 

term  and  period  of year,  .from  the  date  hereof,  and  as  much  longer 

as  oil  or  gas  is  found  in  paying  quantities  thereon  or  the  rental  paid 
by  lessee. 

The  lessee .. shall  pay  to  the  lessor,  .the part  of  all  the  oil  pro- 
duced and  saved  from  the  premises,  and  deliver  free  of  expense  into  tanks 


856  OIL    AND    GAS. 

or  pipe  lines  to  the  lessor's  credit,  and  should  any  well  j)roduce  gas  in 
sufficient  quantities  to  justify  marketing,  the  lessor.. shall   be  paid  at  the 

rate  of dollars  per  year  for  such  well  so  long  as  the  gas  thi-rcfroin  is 

sold. 

If  no  well  be   completed  on  tlie  above  described   premises  witliin 

from   tlie   date   hereof,    then   this   lease   shall   become   null    and   void    unless 

tiie   lessee,  .shall   tliereafter    pay   for   further    delay   at   the    rate   of 

dollars  per  year  until  a  well  shall  be  completed.  Said  amount  may  be 
paid   in  hand  or  by  deposit  to  the  lessor's  credit. 

The  lessor  to  have  sufficient  gas  for  heating  dwellings  on  said  premises 
free  of  charge  at  the  wells.     All  pipe  lines  to  be  buried  below  plow  deptii. 


It  is  further  agreed,  tliat  the  lessee  shall  pay  all  damage  done  to  growing 
crops  and  shall  operate  the  well  witliin  thicc  mnntlis  after  said  well  is 
completed. 

It  is  fully  understood  bj'  and  In'tween  the  paities  hereto,  that  the  rights 
and  privileges  herein  conferred  sliall  be  construed  to  mean  simi)ly  a  lease 
of  privilege  to  drill  and  operate  as  above  set  forth,  for  gas  and  oil;  and  any 
attempt,  on  the  part  of  the  second  party,  to  exceed  the  privileges  granted, 
as  so  construed,  shall  render  the  same  liable  for  tresplws;  and,  furtiiermore, 
shall  work  a  forfeiture  of  all  tlie  riglits  conferred,  and  this  instniiuent 
shall  become  null  and  void. 

IT  IS  FURTHER  AGREED,  That  the  lessee,  .shall  have  the  right  at 
any  time  to  surrender  this  lease  to  the  lessor.. and  thereby  be  fully 
discharged  from  any  and  all  damages  or  claims  whatsoever  arising  from 
any  neglect  or  nonfulfillment  of  the  foregoing  contract. 

It  is  understood  that  all  the  terms  and  conditions  between  the  parties 
hereto  shall  extend  and  apply  to  their  respective  heirs,  e.xecutors,  admin- 
istrators and  assigns. 

IN  WITNESS  WHEREOF,  The  said  parties  have  hereunto  set  tlieir 
hands  and  seal,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  the  presence  of 


(Seal) 
(Seal) 
(Seal) 


STATE  OF  OHIO 

COUNTY  OF I  ^^• 


On   this day   of A.    D.,    190.. before  me,    a in    and    for 

said    county,    personally    appeared    the    above    named and    ac- 
knowledged that did   sign  and  seal  the  within  instrument,  and  that 

the  same  is free  act  and  deed  for  the  purpose  herein  named. 

(Seal) 

GAS  AND  OIL  LEASE. 

IN  CONSIDERATION  of  the  sum  of  One  Dollar,  the  receipt  of  whicii 

is  hereby  acknowledged of of  the  First  Part,  hereby  Grant  and 

Guarantee  unto Second  Party  all  the  Oil  and  Gas  in  and  under 

the  following  described  premises,  together  with  the  right  to  enter  thereon 


APPENDIX.  857 

at  all  times  for  the  purpose  of  Drilling  and  Operating  for  Oil  and  Gas  and 
to  erect  and  maintain  all  buildings  and  structures  and  lay  all  pipes  neces- 
sary for  the  production  and  transportation  of  Oil  and  Gas.  The  First  Party 
shall  have  the  one-eighth  (1-8)  part  of  Oil  produced  and  saved  from  said 
premises,  to  be  delivered  to  the  Pipe  Line  with  which  Second  Party  may 
connect wells,  namely:  All  that  certain  lot  of  land,  in  the  Town- 
ship of County  of in  the  State  of bounded  and  described 

as  follows,  to-wit: containing acres,  more  or  less. 

To  have  and  to  hold  the  above  described  premises  on  the  following  condi- 
tions, for  and  during  the  term  of  Five  years  from  the  date  hereof  and  as 
long  after  said  term  of  years  as  Oil  and  Gas  can  be  found  on  said  real 
estate  in  paying  quantities  or  the  rental  is  paid  thereon  as  hereafter 
herein  provided. 

If  Gas  only  is  found,  in  sufficient  quantities  to  transport.  Second  Party 
agrees  to  pay  First  Party  One  Hundred  ($100)  Dollars  annually  for  the 
product  of  each  and  every  well  so  transported,  and  First  Party  to  have 
Gas  free  of  cost  for  heating  and  lighting  purposes  in  dwelling  house. 
Second  Party  shall  bury  all  Oil  and  Gas  lines  when  same  interfere  with 
cultivation,  and  pay  all  damages  done  by  reason  of  operating  under  this 
grant. 

It  is  agreed  that  Part.. of  the  Second  Part  is  hereby  given  the  option 

to  purchase  the  above  described  land  at  the  sum  of Dollars  per  acre 

on  or  before  the day  of ,    190.  .. 

In   case   no   well   is   commenced   within from    this    date,    then   this 

grant  shall  become  null  and  void  unless  Second  Party  shall  thereafter  pay 

at   the  rate Dollars   for   each   year   such   commencement    is   delayed. 

A  deposit  to  the  credit  of  the  First  Party  in will  be  good  and  suffi- 
cient payment  for  any  money  falling  due  on  this  grant.  First  Party  has 
right  to  locate  roads  to  and  from  places  of  operation 

The  Second  Party  shall  have  the  right  to  use  sufficient  Gas,  Oil  and 
Water  to  run  all  machinery  for  operating  said  Wells,  also  the  right  to 
remove  all  its  property  at  any  time,  and  may  cancel  and  annul  this 
contract  or  any  undrilled  portion  thereof  at  any  time  upon  payment  of 
One  Dollar  to  said  First  Party  and  releasing  the  same  of  record. 

It  is  understod  between  the  parties  of  this  agreement  that  all  conditions 
between  the  parties  hereunto  shall  extend  to  their  heirs,  executors,  success- 
ors  and  assignees. 

IN  WITNESS  WHEREOF,  The  parties  hereunto  set  their  hands  and 
seals  this day  of A.  D.,  190. .. 


STATE  OF  INDIANA,  COUNTY  OF ss: 

Before  me ,  a  Notary  Public  in  and  for  said   County,  this 

day   of ,    190.  .,    personally    appeared    the   above   named 

to  me  Avell  known,  and  acknowledged  the  execution  of  the  above  and  fore- 
going instrument  to  be  their  free  act  and  deed. 

Witness  my  hand  and  Notarial  seal  this  day  and  year  above  written. 

My  commission  expires 190 .. .  


858  OIL    AND    GAS. 

OIL  AND  GAS  LEASE. 

IN  CONSIDERATION  of  the  sum   of  One  Dollar,  the  receipt  of  which 

is  hereby  acknowledged,    ,  of first  part.  .,  hereby  grant  unto 

,    second   party,    all    the    oil    and   gas   in   and    under    the    following 

described  premises,  together  with  the  right  to  enter  thereon  at  all  times 
for  the  purpose  of  drilling  and  operating  for  Oil  or  Gas,  and  to  erect 
and  maintain  all  buildings  and  structures,  and  lay  all  pipes  necessary  for 
the  production  and  transportation  of  Oil  or  Gas  taken  from"  said  premises. 
Excepting  and  reserving,  however,  to  first  part.. the  one-eighth  (%)  part 
of  all  oil  produced  and  saved  from  said  premises,  to  be  delivered  in  the 
pipe  line   with  which  second  party   may  connect   his  wells,   namely:      All 

that  certain  lot  of  land  situate  in  the  township  of Couniy  of 

in  the  State  of ,  bounded  and  described  as  follows,  to- wit: 

containing acres,  more  or  less. 

To  have  and  to  hold  the  above  premises  on  the  following  conditions:      If 

gas  only  is  found,  second  party  agrees  to  pay Dollars  each  year  for 

the  product  of  each  well  while  the  same  is  being  used  off  the  premises,  and 

first  party  to  have  gas  free  of  cost  to  heat stoves  in  dwidiing  house 

during  the  same  time.  4, 

In    case    no    well    is    completed    within fioiii    this    date,    then    this 

grant  shall  become  null   and  void,   unless  second   party    shall   pay   to  said 

first  part Dollars  annually  for  each  year  thereafter  such  well   is 

delayed. 

The  second  party  shall  have  the  right  to  use  sufTicient  gas,  oil  or  water, 
to  run  all  machinery  for  operating  said  wells,  and  also  the  right  to  remove 
all  its  property  at  any  time 

It  is  understood  between  the  parties  to  this  agreement  that  all  conditions 
between  the  parties  hereunto  shall  extend  to  their  heirs,  executors  and 
assigns. 

IN  WITNESS  WHEREOF,  the  parties  hereto  have   hereunto   set  their 

hands  and  seals  this day  of ,  A.  D.  190.  .. 

(Seal) 

( Seal ) 

(Seal) 

(Seal) 
STATE  OF.. 
COUNTY  OF. 

Before  me in   and  for   said  county  aforesaid,   personally  ai3peared 

and  acknowledged  the  exectition  of  the   foregoing  lease. 

Witness  my  hand  and seal  this day  of ,  190. 


.  f  ^^- 


APPENDIX.  859 

OHIO  AND  PENNSYLVANIA 

OIL  LEASE. 
[Entered  according  to  Act  of  Congress  in  the  year  188G,  by  J.  A.  Heydrick, 
of  Butler,  Pa.,  in  the  Office  of  Librariati  of  Congress,  at  Washington, 
D.  C,  and  used  by  his  permission.] 

AGREEMENT,      Made   and   entered    into   this day   of A.   D. 

190..,   by   and    between of   the   County   of and   State   of 

party  of  the  first  part,  and party  of  the  second  part. 

WITNESSETH,     That  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of Dollars,  to  him  in  hand  well  and  truly  paid, 

the  receipt  of  which  is  hereby  acknowledged,  and  in  further  consideration 
of  the  covenants  and  agreements  hereinafter  mentioned,  does  covenant  and 
agree  to  lease,  and  by  these  presents  has  leased  and  granted  the  exclusive 
right  unto  the  party  of  the  second  part,  his  heirs  or  assigns,  for  the 
purpose  of  operating  and  drilling  for  petroleum  and  gas,  to  lay  pipe  lines, 
erect  necessary  buildings,  release  and  sub-divide  all  of  that  certain  tract 

of  land  situate  in Township,    County  and  State  of and 

bounded  and  described  as  follows,  to-wit: 

Bounded  on  the  North  by  the  lands  of on  the  East  by  the  lands  of 

on   the   South  by  the   lands  of on   the  West  by  the   lands   of 

Containing acres, The  party  of  the   second 

part,  his  heirs  or  assigns,  to  have  and  to  hold  the  said  premises  for  and 
during  the  term  of  fifteen  years  from  the  date  hereof,  and  so  long  there- 
after as  oil  or  gas  can  be  produced  in  paying  quantities. 

The  party  of  the  second  part,  his  heirs  or  assigns,  agrees  to  give  to  the 
party  of  the  first  part  one-eighth  part  of  all  the  petroleum  obtained  from 
the  said  premises,  as  produced  in  a  crude  state,  the  said  one-eighth  part 
of  the  petroleum  to  be  set  apart  in  the  pipe  line  running  said  petroleum 
to  the  credit  and  for  the  benefit  of  the  said  party  of  the  first  part.  The 
said  party  of  tlie  first  part  is  to  fully  use  and  enjoy  the  said  premises 
for  the  purpose  of  tillage,  except  such  part  as  shall  be  necessary  for  said 
mining  purposes,  and  a  right  of  way  over  and  across  the  said  premises  to 
the  place  or  places  of  mining  or  operating.  The  said  party  of  the  second 
part  is  further  to  have  the  privilege  of  using  sufficient  gas  and  water  from 
the  premises  herein  leased  to  run  the  necessary  engines,  the  right  to 
remove  any  machinery,  fixtures  and  buildings  placed  on  said  premises  by 
said  party  of  the  second  part,  or  those  acting  under  him.  and  is  not  to 
put  down  any  well  for  oil  on  the  lands  hereby  leased  within  ten  rods  of 
the  buildings  now  on  said  premises  without  the  consent  of  the  said  party 

of   the   first   part 

IT  IS  AGREED,  That  if  gas  is  found  in  paying  quantities,  the  consid- 
eration in  full  to  the  party  of  the  first  part  for  gas  shall  be Dollars. 

per   annum   for  the   gas   from   each   well   Avhen  utilized   off   the   aforesaid 
premises. 

The   party   of   the    second   part   agrees   to    commence    operations   within 

from  the  execution  of  this  lease,  or  in  lieu  thereof  thereafter  pay  to 

the   said   party   of   the    first   part dollars   per    annum   imtil    work   is 

commenced 


■■! 


860  OIL    AND    GAS. 

AND  IT  IS  FURTHER  AGREED,  That  the  second  party,  his  heirs  or 
assigns,  shall  have  the  right  at  any  time  to  surrender  up  this  lease,  and  be 
released  from  all  moneys  due  and  conditions  unfulfilled,  then  and  from 
that  time  this  lease  and  agreement  shall  be  null  and  void  and  no  longer 
binding  on  either  party,  and  the  payments  which  shall  have  been  made 
shall  be  held  by  the  party  of  the  first  part  as  the  full  stipulated  damages, 
for  the  non-fulfillment  of  the  foregoing  contract;  that  all  conditions  be- 
tween the  parties  hereunto  shall  extend  to  their  heirs,  executors  and 
assigns. 

IN  WITNESS  WHEREOF,  we,  the  said  parties  of  the  first  and  second 
parts,    have    hereunto    set   our    hands    and   seals    the    day   and    year    first 
above  written. 
Witness  : 

(Seal) 

(Seal) 

COIVIMON WEALTH  OF. 

COUNTY   OF 

BE   IT  REMEMBERED,     That  on  the day  of A.  D.   190. 

before   me,    a in    and    for    said    county,    personally    came   the    above 

named and  in  due  form  of  law  acknowledged  the  above  inden- 
ture to  be act  and  deed,  and  desired  that  the  same  might  be  recorded 

as  such. 

(Seal) 

AGREEMENT. 

[Entered  according  to  the  Act  of  Congress  in  the  year  1886,  iy  J.  A. 
Heydrick,  of  Butler,  Pa.,  in  the  office  of  Librarian  of  Congress  at  Wash- 
ington, D.  C,  and  used  with  his  permission.] 

THIS   AGREEMENT,     Made   and  entered   into   this day  of 

A.  D.   190.  .,  by  and  between of  the  fir.st  part,  and of  the 

second  part. 

WITNESSETH,     That   the    said for   and    in   consideration    of   the 

sum  of Dollars,  to well  and  truly  paid  by the  receipt  and 

payment  of  wliich    is   hereby   acknowledged,   has   sold,   granted,    conveyed, 
assigned,   transferred   and  set   over   and   by  these  presents  do   sell,   gram, 

convey,  assign,  transfer  and  set  over  unto  the  said heirs  and  assigns 

interest    in   the   within    lease   made   by to on   the 

day  of 190.  .,  with of  the  property,  rights  of   property, 

interest,   powers  and  possessions  of  every  kind  therein   conveyed,  all  and 

singular,  subject  to  the  conditions  therein  specified 

IN  WITNESS  WHEREOF,  The  parties  have  hereunto  seir  their  hands 
and  seals  the  day  and  year  first  above  written. 

WiTXE.SS :  ( Seal ) 

(Seal) 

(Seal) 

(Seal) 


APPENDIX.  861 

COMMONWEALTH  OF..  ) 

COUNTY  OF \^^^- 

BE   IT   REMEMBERED,'     That   on   the day   of A.   D.   190.. 

before  me,  a in  and  for  said  county,  personally  came  the  above  named 

and   in   due   form    of   law    acknowledged   the   above    indenture 

to  be act  and  deed,  and  desired  that  the  same  might  be  recorded  as 

such. 

(Seal) 

OHIO  AND  WEST  VIRGINIA 
OIL  LEASE. 

AGREEMENT,    made    and    entered    into    this day    of A.    D., 

190..,   by   and   between of   the   county   of and    State    of 

party  of  the  first  part  and party  of  the  second  part. 

WITNESSETH.      That    the    said    part,  .of   the    first   part,    for    and    in 

consideration  of  the  sum  of Dollars  to  him  in  hand  well  and  truly 

paid,  the  receipt  of  which  is  hereby  acknowledged,  and  in  further  con- 
sideration of  the  covenants  and  agreements  hereinafter  mentioned,  does 
covenant  and  agi'ee  to  lease,  and  by  these  presents  has  leased  and  granted 
the  exclusive  right  unto  the  party  of  the  second  part,  his  heirs  or  assigns, 
for  the  purpose  of  operating  and  drilling  for  petroleum  and  gas,  to  lay 
pipe    lines,    erect    necessary    buildings,    re-lease    and    sub-divide    all    that 

certain  tract  of  land  situate  in district;    county  and  State  of 

and  bounded  and  described  as  follows,  to-wit : 

On  the  North  by  lands  of ;  on  the  East  by  lands  of ;  on  the 

South    b}'    lands    of ;    on    the    West   by    lands    of ;    containing 

acres Tlie    party    of    the    second    part,    his    heirs    or 

assigns,  to  have  and  to  hold  the  said  premises   for  and  during  the  term 

of from  the  date  hereof,   and   so  long  thereafter   as   oil  or  gas  can 

be   produced   in   paying   quantities,    or   rental   paid   thereon. 

Tlie  party  of  the  second  part,  his  heirs  or  assigns,  agrees  to  give 
to  the  party  of  the  first  part  one-eighth  part  of  the  petroleum  obtained 
from  said  premises,  as  produced  in  the  crude  state,  the  said  one-eighth 
part  of  the  petroleum  to  be  set  apart  in  the  pipe  line  running  said 
petroleum,  to  the  credit  and  for  the  benefit  of  the  said  party  of  the 
first  part.  The  said  party  of  the  first  part  is  to  fully  use  and  enjoy 
the  said  premises  for  the  purpose  of  tillage,  except  such  parts  as  shall 
be  necessary  for  said  mining  purposes,  and  a  right  of  way  over  and 
across  said  premises  to  the  place  of  mining  or  operating.  The  said  party 
of  the  second  part  is  further  to  have  the  privilege  of  using  sufficient 
gas  and  water  from  the  premises  herein  leased  to  run  the  necessary 
engines,  the  right  to  remove  any  machinery,  fixtures  and  buildings  placed 
on  said  premises  by  said  party  of  the  second  part,  or  those  acting  under 
him,  and  is  not  to  put  do^vn  any  well  for  oil  on  the  lands  hereby  leased 

within feet  of  the  buildings  now  on  said  premises  without  the  consent 

of  both  parties  in  writing. 


862  OIL    AND    GAS. 

Party  of  the  second  part  agree  to  pay  damage  done  to  growing  crops 
by  their  operations  on  said  premises. 

IT  IS  AGREED,  That  if  gas  is  found,  in  paying  quantities,  the  con- 
sideration in   full  to   the  party   of  the   first  part  for  gas   shall  be 

Dollars  per  annvun  for  the  gas  from  each  well  when  utilized  off  the 
premises  of  the  parties  of  the   second  part. 

Part .  .  of  the  first  part  to  have  gas  for  domestic  purposes  free  by 
making  his  own  connections  to  well  or  wells.  Party  of  the  second  part 
to  have  privilege  of  disconnecting,  pulling  casing  or  abandoning  said 
well  or  Avells  without  becoming  liable  for  any  damage  to  party  of  first 
part. 

The  party  of  the  second  part  agree  to  commence  operations  within 
from  the  execution  of  this   lease,   or   in  lieu  thereof  thereafter  pay 


to  the  said  party  of  the  first  part until  the  work  is  commenced,  pay- 
able  at 

AND  IT  IS  FURTHER  AGREED,  That  the  second  party,  his  heirs 
or  assigns,  shall  have  the  right  at  any  time  to  surrender  up  this  lease, 
and  be  released  from  all  moneys  due  and  conditions  unfulfilled;  then  and 
from  that  time  this  lease  and  agreement  shall  be  null  and  void,  and  no 
longer  binding  on  either  party,  and  the  payments  which  shall  have  been 
made  be  held  by  the  party  of  the  first  part  as  the  full  stipulated  damages 
for  the  non-fulfillment  of  the  foregoing  contract ;  that  all  conditions  be- 
tween the  parties  hereunto  shall  extend  to  their  heirs,  executors  and 
assigns. 

IN  WITNESS  WHEREOF,  We,  the  said  parties  of  the  first  and  second 
parts,  have  hereunto  set  our  hands  and  seals  the  day  and  year  first  above 
written. 

In    Presence   of 


(Seal) 
( Seal ) 
(Seal) 
(Seal) 


STATE  OF  WEST  VIRGINIA, 
COUNTY   OF 

To-WIT : 

I ,    a of    said    county    of ,    do    certify    that and 

his   wife,   whose  names   are    signed   to  the  within   writing,   bearing 

date    the day    of A.    D.,    190.  .ha.  .this    day   acknowledged    tlie 

same  before  me  in  my  said  county. 

Given   under  my  hand   this day  of A.  D.,   190.. 


THE   STATE   OF   OHIO,    J 
COUNTY   OF i^^- 

Be  it  remembered  that  on  the day  of A.  D.,  190.  .before  me, 

the  subscriber,  a in  and  for  said  coiuity,  personally  came 

and his    wife,    and    acknowledged    the    signing    and    sealing    of    the 

foregoing  instrument  to  be act  and   deed  for  the  use  and   purposes 

therein   expressed. 


APPEXDIX.  863- 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  the  day  and 
year   above  written. 


OIL   LEASE. 

AGREEMENT,    made    and   entered    into    this day   of A.    D., 

190.  .by  and  between of  the  county  of and  State  of pfirty 

of  the  first  part  and party  of  the  second  part. 

WITNESSETH,      That    the    said    part.. of    the   first    part,    for    and    in 

consideration  of  the  sum  of Dollars,  to  him  in  hand  well  and  truly 

paid,  the  receipt  of  which  is  hereby  acknowledged,  and  in  further  consid- 
eration of  the  covenants  and  agi'eements  hereinafter  mentioned,  does 
covenant  and  agree  to  lease,  and  by  these  presents  has  leased  and  granted 
the  exclusive  right  unto  the  party  of  the  second  part,  his  heirs  or  assigns, 
for  the  purpose  of  operating  and  drilling,  for  petroleum  and  gas,  to. lay 
pipe  lines,  erect  necessaiy  buildings,  re-lease  and  sub-divide  all  that  certain 

tract   of   land   situate   in district,    county   and   State  of 

and  bounded  and  described  as  follows,  to- wit: 

On  the  North  by   lands  of ;    on  the   East  by  lands  of ;    on 

the  South  by  lands  of ;   On  the  West  by  lands  of ;   containing 

acres,     The    party    of   the   second    part,    his    heirs   or 

assigns,  to  have  and  to  hold  the  said  premises  for  and  during  the  term  of 

from  the  date  hereof,  and  so  long  thereafter  as  oil  or  gas  can  be 

produced  in  paying  quantities,  or   rental  paid  thereon. 

The  party  of  the  second  part,  his  heirs  or  assigns,  agrees  to  give  to  the 
party  of  the  first  part  one-eighth  part  of  the  petroleum  obtained  from 
said  premises,  as  produced  in  the  crude  state,  the  said  one-eighth  part  of 
the  petroleum  to  be  set  apart  in  the  pipe  line  running  said  petroleimi, 
to  the  credit  and  for  the  benefit  of  the  said  party  of  the  first  part.  The 
said  party  of  the  first  part  is  to  fully  use  and  enjoy  the  said  premises  for 
the  purpose  of  tillage,  except  such  parts  as  shall  be  necessary  for  said 
mining  purposes,  and  a  right  of  way  over  and  across  said  premises  to  the 
place  of  mining  or  operating.  The  said  party  of  the  second  part  is  further 
to  have  the  privilege  of  using  sufficient  gas  and  water  from  the  premises 
herein  leased  to  run  the  necessary  engines,  the  right  to  remove  any 
machinery,  fixtures  and  buildings  placed  on  said  premises  by  said  party  of 
the  second  part,  or  those  acting  under  him,  and  is  not  to  put  down  any 
well  for  oil  on  the  lands  hereby  leased  within  ten  rods  of  the  buildings 
now  on  said  premises  without  the  consent  of  both  parties  in  writing. 

IT  IS  AGREED,  That  if  gas  is  found,  in  paying  quantities,  the  con- 
sideration in  full  to  the  party  of  the  first  part   for   gas   shall  be 

Dollars  per  annum  for  the  gas  from  each  well  when  utilized. 

The    party   of   the    second    part   agree   to    commence    operations    within 

from  the  execution  of  this  lease,  or  in  lieu  thereof  thereafter  pay  to 

tlie  said  party   of  the  first   part dollars  per  annum   until  the  work 

is  comrnenced.  A  failure  to  pay  such  rental  shall  render  this  lease  null 
and    void 

AND  IT  IS  FURTHER  AGREED,  That  the  second  party,  his  heirs 
or   assigns,   shall  have  the  right  at  any  time   to  surrender  up  this  lease. 


864:  OIL    AND    GAS. 

and  be  released  from  all  moneys  due  and  conditions  nnfulfilled ;  then 
and  from  that  time  this  lease  and  agreement  shall  be  null  and  void,  and 
no  longer  binding  on  either  party,  and  the  payments  which  shall  have 
been  made  be  held  by  the  party  of  the  first  part  as  the  full  stipulated 
damages  for  the  non-fulfillment  of  the  foregoing  contract ;  tliat  all  con- 
ditions between  the  parties  hereunto  shall  extend  to  their  heirs,  executors 
and  assigns. 

IN    WITNESS    WHEREOF,      We,    the    said    parties    of    the    first    and 
second   parts,   have  hereunto   set  our  hands   and   seals   the   day   and  year 
first  above  written. 
In  Presence  of 

^eal) 

(Seal) 

( Seal ) 

(Seal) 

STATE    OF    WEST    VIRGINIA,     ) 
COUNTY  OF ^To-wit: 

I,     a of    said    county    of ,    do    certify    that and 

his   wife,   whose   names   are   signed   to   the   within   writing,   bearing 

date   the day  of A.  D.,   190..,  ha.. this  day  acknowledged  the 

same  before  me  in  my  said   county. 

Given  under  my  hand  this day  of A.  D.,   190. . 


THE  STATE  OF  OHIO. 

ss 


COUNTY  OF 

Be  it  remembered  that  on  the day  of A.  D.,  190.  .before  me, 

the    subscriber,    a in    and    for    said    county,    personally    came 

and his    wife,    and    acknowledged    the    signing    and    sealing    of    the 

foregoing  instrument  to  be act  and   deed   for   the  use  and   purposes 

therein  expressed. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  the  day  and 
year  above  written. 


OIL  AND  GAS  LEASE. 

AGREEMENT  OF  LEASE,     Made  this day  of A.  D.,   190. . 

between of ,   Lessor .  . ,   and ,   Lessee .  . ,   Witnesseth : 

That  the  lessor   does   hereby  grant  unto   lessee   for   the  term   of 

years  (and  so  long  thereafter  as  oil  or  gas  is  produced  from  the  land 
leased  and  royalty  or  rentals  paid  by  lessee  therefor)  the  exclvisive  right  to 
mine  for  and  produce  petroleum  and  natural  gas  from,  and  the  possession 

of   so   much    of acres   of   land Township County, 

State  of as  may  be  necessary  therefor,  with  the  right  to  use  water 

and  gas  (if  found)  for  the  necessary  engines,  and  to  remove  all  machinery, 
fixtures,  etc.,  placed  by  the  lessee  on  the  premises.  Said  land  bounded: 
North   by  lands   of ;    East  by   land   of ;    South   by   lands   of 


APPENDIX.  865 

,    and   West    by   lands   of No    well    will    be    drilled    within 

feet  of   the  buildings   without   the   lessor's   consent.     The    lessee   to 

deliver  to  lessor,   in  pipe  line,   the  one-eighth  of  all  petroleum   produced 

from  the  premises,  and  to  pay dollars  per  annum  for  each  gas  well 

from  which  gas  is  marketed,  payable  yearly  from  the  date  and  while  the 
same  is  so  utilized,  and  to  pay  all  damages  to  growing  crops.  If  gas  is 
found  on  the  premises  the  lessee  is  to  have  sufficient  gas  for  fuel  purposes 
in  the  operation  of  this  lease;  lessor  is  to  have  gas  for  household  purposes 
free  of  charge.  Lessee  is  to  have  all  rights  and  privileges  necessary  for  the 
proper  use  and  enjoyment  of  this  lease. 

This  lease  to  be  null  and  void  and  no  longer  binding  on  either  party  if  a 

well  is  not  completed  on  the  premises  within months  from  tlfis  date, 

unless  the  lessee  shall  thereafter  pay  monthly  to  the  lessor dollars 

per  month  for  each  month's  delay  in  commencing  said  well.  Each  pay- 
ment to  extend  the  time  for  commencing  for   one  month   and  no  longer. 

A  deposit  to   credit  of  lessor  in Bank to  be  good  payment  of 

any  moneys  on  this  lease. 

All   grants   and    covenants   to   extend   to   the   heirs   and   assigns   of   the 
parties    hereto 

Witness  the  hands  and  seals  of  the  parties. 

Witness  :  ( Seal) 

(Seal) 

(Seal) 

(Seal) 


STATE   OF  OHIO,    COUNTY,   ss. 

Be  it  remembered,   that   on  the day   of A.  D.,    190..,  before 

me,   a in   and    for   said   County,    personally   came   the   above    named 

and  in  due  form  of  law  acknowledges  the  within  agreement 

to    be free    act    and    deed,    and    desired    that    the    same    might    be 

recorded  as  such. 

(Seal) 

STATE  OF  WEST  VIRGINIA,  COUNTY  OF To-wit: 

I,     ,    a of    said    county    of do    certify    that and 

his  wife,   whose  names  are  signed  to  the  within  writing,   bearing 

date  the day  of A.  D.,   190.  .,  have  this  day  acknowledged  the 

same  before  me  in  my  said  county. 

Given  under  my  hand  this day  of A.  D.,   190.  .. 


ASSIGNMENT  OF  LEASE. 

KNOW    ALL   MEN   BY   THESE   PRESENTS,      That for    and    in 

consideration  of  the  sum  of Dollars   the  receipt  of  which  is  hereby 

acknowledged,  has  this  day  transferred,  conveyed  and  sold  unto 

my interest   in   the   foregoing  lease. 

Witness  :  


86G  OIL    AND    GAS. 

ACICSrOWLEDGMENT  OF  TRANSFER. 

STATE   OF COUNTY   OF To-wiT: 

I,     ,    a of    said    county    of ,    do    certify    that 

whose    name signed    to    the    above    writing   bearing   date    the 

day   of 190. .,  ha.  .acknowledged   the   same   to  be free  act  and 

deed   before   me  in  my   said   county 

Given   under   my   hand   and   notarial   seal   this day   of 190.. 

State  of 

County Office 190 .. . 

The    foregoing   writing   and   the    certificate    of    acknowledgment   thereof 
were  this  day  admitted  to  record  in  this  office.  > 


Teste : 


OIL  AND  GAS  LEASE. 

AGREEMENT,      Made    and    entered    into   the day   of A.   D., 

190.  .,  by  and  between of County  of and   State  of 

party  of  the  first  part,  and party  of  the  second   part : 

WITNESSETH,  that  the  said  party  of  the  first  part,  for  and  in  con- 
sideration  of   the   sum  of Dollars   in   hand   well   and   truly   paid   by 

the  said  party  of  the  second  part,  the  receipt  of  which  is  hereby  ac- 
knowledged, and  the  covenants  and  agreements  hereinafter  contained  on 
the  part  of  the  said  party  of  the  second  part,  to  be  paid,  kept  and  per- 
formed, has  granted,  demised,  leased  and  let,  and  by  these  presents  does 
grant,  demise,  lease  and  let  unto  the  said  party  of  the  second  part,  his 
heirs,  executors,  administrators  or  assigns,  for  the  sole  and  only  purpose 
of  mining  and  operating  for  oil  and  gas,  and  of  laying  pipe  lines,  and 
of    building    tanks,    stations    and    structures,    to    take    care    of    the    said 

production,    all    that    certain    tract    of    land,    situate    in of 

County  of and  State  of on  waters  of bounded  substan- 
tially as  follows : 

On  the  North  by  lands  of ;  on  the  East  by  lands  of ;  on  the 

South   by   lands   of ;    on   the   West  by   lands   of Containing 

acres,  more  or   less. 

IT  IS  AGREED  that  this  lease  shall  remain  in  force  for  the  term  of 
ten  years  from  this  date,  and  as  long  as  oil  or  gas,  or  either  of  them,  is 
produced  therefrom  by  the  party  of  the  second  part,  its  successors  and 
assigns. 

IN  CONSIDERATION  OF  THE  PREMISES  the  said  party  of  the 
second  part  covenants  and  agrees;  1st — To  deliver  to  the  credit 
of  the  first  party,  his  heirs  or  assigns,  free  of  cost,  in  the  pipe 
line  to  which  it  may  connect  its  wells,  the  equal  one-eighth  part  of  all 
oil    produced    and    saved    from    the    leased    premises ;    and    2nd  —  to    pay 

Dollars  per  year  for  the  gas  from  each  and  every  gas  well  drilled 

on  said  premises,  the  product  from  whfch  is  marketed  and  used  off  the 
premises,  said  payment  to  be  made  on  each  well  within  sixty  days  after 
commencing  to  use  the  gas  therefrom,  as  aforesaid,  and  to  be  paid  yearly, 
thereafter  while  the  gas  from  said  well   is  so  used. 


APPEXDIX.  8G7 

Second  party  covenants  and  agrees  to  locate  all  wells  so  as  to  interfere 
as  little  as  possible  with  the  cultivated  portions  of  the  farm,  and  to  drill 

no   well   within feet   of   the   buildings   on  these   premises,   except  by 

consent  of  the  first  party. 

Provided,  however,  that  this  lease  shall  become  null  and  void,  and  all 
rights    hereunder    shall    cease    and    determine    unless    a    well    shall    be 

completed    on    the    said    premises    within from    the    date    hereof,    or 

unless  the  lessee  shall  pay  at  the  rate  of Dollars  quarterly,  in  ad- 
vance for  each  additional  three  months  such  completion  is  delayed,  from 
the  time  above  mentioned  for  the  completion  of  such  well  until  a  well  is 
completed ;  and  it  is  agreed  that  the  completion  of  such  well  shall  be 
and  operate  as  a  full  liquidation  of  all  rental  under  this  provision  during 
the  remainder   of   the   term   of  this   lease.     Such   payments   may  be   made 

direct  to  the  lessors  or  by  check   to  order  of deposited  in  the  post 

office  by  registered  letter  directed  to 

IT  IS  AGREED  that  the  second  party  shall  have  the  privilege  of  using 
sufficient  water  from  the  premises  to  run  all  necessary  machinery  and  at 
any  time  to  remove  all  machinery  and  fixtures  placed  on  said  premises; 
and,  further,  shall  have  the  right  at  any  time  to  surrender  this  lease  to 
the  first  party  for  cancellation,  after  which  all  payments  and  liabilities 
to  accrue  under  and  by  virtue  of  its  terms,  shall  cease  and  determine,  and 
this  lease  becomes  absolutely  null  and  void. 

Witness  the  following  signatures  and  seals: 

Witness  :  

(Seal) 

(Seal) 

( Seal ) 

(Seal) 

STATE  OF  WEST  VIRGINIA.  COUNTY  OF To-wit: 

I, a of  said  County  of do  certify  that and 

his  wife,  whose  names  are  signed  to  tlie  within  writing,  bearing  date  the 

......  day  of A.  D.,  190 .  . ,  ha  .  .  this  day  acknowledged  the  same  before 

me  in  my  said  county. 

Given  under  mv  hand  this dav  of A.  D..    190.  . 


THE  STATE  OF  OHIO,  COUNTY  OF ,  ss. 

Be  it  remembered  that  on  the day  of A.  D.,   190.  .before  me, 

the  subscriber,   a in  and  for  said  county,  personally  came and 

his  wife,  and  acknowledged  the  signing  and  sealing  of  the  foregoing 

instrument   to    be act   and    deed    for    the   use    and    purposes    therein 

expressed. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  the  day  and 
year  above  written. 

OIL   AND   GAS  LEASE    (NEW). 

THIS  INDENTL^RE,  Made  the day  of A.  D..  1 be- 
tween   of  the of County  of and  State  of 

lessor  and ,   lessee. 


868  OIL    AND    GAS. 

WITNESSETH,    That  the  lessor.  .,  in  consideration  of Dollars,  the 

receipt  whereof  is  hereby  acknowledged,  does  hereby  grant,  demise  and  let 
unto  the  said  lessee,  all  the  oil  and  gas  in  and  under  the  following  de- 
scribed tract  of  land,  with  covenant  for  the  lessee's  quiet  enjoyment  of  the 
term,  and  that  lessor  has  the  right  to  convey  the  premises  to  the  said 
lessee;  together  with  the  exclusive  right  unto  the  lessee  to  operate  and 
drill  for  petroleum  and  gas,  to  lay  and  maintain  pipe  lines,  and  erect 
and  maintain  telephone  and  telegraph  lines,  and  buildings  convenient  for 
such  operations;  with  the  right  to  use  water  and  gas  from  said  lands, 
and  right  of  way  over  same  for  any  purpose,  and  right  of  ingi'ess,  egress 
and  regress  for  such  purposes,  and  of  removing,  either  during  or  at  any 
time  after  tlie  term  hereof,  any  property  or  improvements  pl#eed  or 
erected  in  or  upon  said  land  by  said  lessee;  with  the  right  of  sub-dividing 

and  re-leasing  all  that  tract  of  land  situate  in  the of County  of 

and  State  of and  bounded  and  described  as  follows,  to-wit: 

On  the  North  by  the  lands  of ;  on  the  East  by  the  lands  of ; 

on  the  South  by  the  lands  of ;  on  the  West  by  the  lands  of 

Containing acres,  more  or  less. 

TO  HAVE  AND  TO  HOLD  unto  and  for  the  use  of  the  lessee  for  the  term 
of years  from  the  date  hereof  and  as  much  longer  as  oil  or  gas  is  pro- 
duced in  paying  quantities,  yielding  to  the  lessor  the  one-eighth  part  of 
all  the  oil  produced  and  saved  from  the  premises,  delivered  free  of  ex- 
pense into  tanks  or  pipe  lines  to  the  lessor's  credit;  and  should  a  well 
be  found  producing  gas  only,  then  the  lessor  shall  be  paid  for  each  such 

gas  well  at  the  rate  of Dollars  for  each  year,  so  long  as  the  gas  is 

sold  therefrom,  payable  quarterly  while  so  marketed. 

PROVIDED,  That  this  lease  shall  become  null  and  void  unless  opera- 
tions shall  be  commenced  on  the  premises  and  a  well  completed,  unavoid- 
able delay  or  accident  excepted,  within months  from  the  date  hereof, 

or,  unless  lessee  sliall  pay  at  the  rate  of Dollars  per ,  payable 

in  advance  or  within  ten  days  thereafter  for  each  additional 

such  completion  of  well  is  delayed;  and  the  completion  of  such  well, 
productive  or  otherwise,  shall  vest  in  lessee,  during  the  remainder  of 
the  term  of  this  lease,  rental  free,  the  grant  hereunder  including  the 
exclusive  right  to  make  such  other  and  further  search  for  oil  or  gas  as 
lessee. may  wish 

Lessor  is  to  fully  use  and  enjoy  said  premises  for  the  purpose  of  tillage, 
except  such  parts  as  may  be  used  by  lessee  for  the  purposes  aforesaid. 
Lessee  is  not  to  put  down  any  well  on  the  lands  hereby  leased  within  ten 
rods  of  the  buildings  now  on  said  premises  without  the  consent  of  the 
lessor  in  writing.  Lessor  may,  if  any  well  or  wells  on  said  premises 
produce  sufficient  gas,  have  gas  for  domestic  purposes  for  one  family,  the 
lessor  paying  for  connections  at  such  point  as  may  be  from  time  to  time 
designated   by   lessee. 

The  above  rental  shall  be  paid  to  lessor  in  person  or  by  check  deposited 

in  postoffice  directed  to And   it  is  further  agreed,  that  lessee 

shall  have  the  right  at  any  time  to  surrender  this  lease,  whereupon  this 
lease  shall  be  null  and  void;  and  that  all  conditions,  terms  and  limitations 


APPENDIX.  869 

between  the  parties  hereto  shall  extend  to  their  heirs,  personal  represen- 
tatives   and   assigns. 

IX  WITNESS  WHEREOF,     We,    the  said  parties  hereto,  have  hereunto 
set  our  hands  and  seals  the  day  and  year  first  above  written. 
Witness  : 


(Seal) 

(Seal) 

(Seal) 

(Seal) 

STATE  OF  WEST  VIRGINIA,  COUNTY  OF ,  To- wit: 

I,     a of    said    County    of ,    do    certify    that and 

his   wife,   whose   names   are   signed   to   the   within   writing,   bearing 

date  the day  of A.   D.,   190..,  ha.. this   day   acknowledged  the 

same  before  me  in  my   said  county. 

Given  under  my  hand  this day  of A.  D.,  190. . 


STATE  OF  OHIO,  COUNTY  OF ,  ss. 

Be  it  remembered  that  on  this day  of A.  D.,  190.  .before  me, 

a in    and    for    said    county,    personally    appeared    the    above    named 

, to  me  personally  known  to  be  the  part .  .  named  in  and  who  executed 

the  within  agreement  and  acknowledged  to  be act  and  desired  the  same 

to  be  recorded. 

Witness  my  hand  and seal  the  day  and  year  aforesaid. 


(Seal) 


OIL  AND  GAS  LEASE    (NEW). 


AGREEilENT,      Made   and    entered   into   the day    of A.   D., 

190.  .,  by  and  between of Coimty   of and   State  of 

part,  .of  the  first  part,  and part,  .of  the  second  part: 

WITNESSETH.  That  the  said  part.. of  the  first,  for  and  in  considera- 
tion of  the  sum  of Dollars  to in  hand  well  and  truly  paid  by  the 

said  part .  .  of  the  second  part,  the  receipt  of  which  is  hereby  acknowledged, 
and  the  covenants  and  agi-eements  hereinafter  contained  on  the  part  of  the 
said  party  of  the  second  part,  to  be  paid,  kept  and  performed,  ha . . 
granted,  demised,  leased  and  let,  and  by  these  presents  do .  .  grant,  demise, 

lease  and  let  unto  the  said  part .  .  of  the  second  part, heirs,  executors, 

administrators  or  assigns,  for  the  sole  and  only  purpose  of  raining  and 
operating  for  oil  and  gas,  and  of  laying  pipe  lines,  and  of  building  tanks, 
stations  and  structures  thereon  to   take   care  of  the  said   products.   ALL 

that  certain  tract  of  land,  situate  in District County  and  State 

of on  waters  of bounded    substantially  as  follows: 

North  by  lands  of ;    East  by  lands  of ;    South  by  lands  of 

and    West    by    lands    of Containing acres,    more    or 

less,   and   being   same   land    conveyed   to   the   first   part.. by by   deed, 

bearing  date 190.  .,  reserving,  however,  therefrom feet  around 

the  buildings  on  which  no  well  shall  be  drilled  by  either  party  except  by 
mutual  consent. 


870  OIL    AND    GAS. 

IT  IS  AGREED  that  this  lease  shall  remain  in  force  for  the  term  of 
ten  years  from  this  date,  and  as  long  thereafter   as  oil  or  gas,  or  either 

of  them,   is  produced   therefrom  by  the  party  of  the  second  part,    

heirs,  executors,  administrators  or  assigns. 

IN  CONSIDERATION  OF  THE  PREMISES  the  said  part.. of  the 
second  part  covenants  and  agrees:      1st — To  deliver  to  the  credit  of  the 

first  part heirs  or  assigns  free  of  cost,  in  the  pipe  line  to  which  it 

may  connect  its  wells,  the  equal part  of  all  oil  produced  and  saved 

from  the  leased  premises;  and,  2nd  — To  pay Dollars  per  year  for  the 

gas  from  each  and  every  gas  well  drilled  on  said  premises,  the  product  of 
which  is  marketed  and  used  off  the  premises,  said  payment  to  be  n^de  on 
each  well  within  sixty  days  after  commencing  to  use  the  gas  therefrom. 
as  aforesaid,  and  to  be  paid  yearly  thereafter  while  the  gas  from  said 
well  is   so  used. 

Second  part,  .covenant,  .and  agree.,  to  locate  all  wells  so  as  to  inter- 
fere as  little  as  possible  with  the  cultivated  portions  of  the   farm.     And 

further   to   complete  a  well   on   said   premises  within from   the   date 

hereof,  or  pay  at  the  rate  of Dollars  quarterly,  in  advance,  for  each 

additional  three  months  such  completion  is  delayed  from  the  time  above 
mentioned  for  the  completion  of  such  well  until  a  well  is  completed;  and 
it  is  agreed  that  the  completion  of  such  well  shall  be  and  operate  as  a 
ful  liquidation  of  all  rental  under  this  provision  during  the  remainder  of 
the  term  of  this  lease.  Such  payments  may  be  made  direct  to  the  lessor 
or   deposited   to credit   in 

IT  IS  AGREED  that  the  second  party  shall  have  the  privilege  of  using 
sufficient  water  from  the  premises  to  run  all  necessary  machinery  and 
at  any  time  to  remove  all  machinery  and  fixtures  placed  on  said  premises; 

and,    further,    upon    the    payment    of Dollars,    at    any   time,    by    the 

part .  .  of  the  second  part,   heirs,  successors  of  assigns,  to  the  part .  . 

of   the   first,    heirs   successors   or   assigns,   said  part.. of  the   second 

part,    heirs,  successors  or  assigns,  shall  have  the  right  to  surrender 

this  lease  for  cancellation,  after  which  all  payments  and  liabilities  there- 
after to  accrue  under  and  by  virtue  of  its  terms,  shall  cease  and  determine, 
and  this  lease  become  absolutely  null  and  void. 

Witness  the  following  signatures  and  seals: 

Witness. 

(Seal) 

(Seal) 

( Seal ) 

.(Seal) 

STATE  OF  WEST  VIRGINIA,  COUNTY  OF ,  To-wit  : 

I,    ,    a of   said    county   of do    certify   that and 

his  wife,  whose  names  are  signed  to  the  within  writing,  bearing  date 

the day  of A.  D.,  190.  .,  have  this  day  acknowledged  the  same 

before  me  in  my  said  county. 

Given  under  my  hand  this day  of A.  D.,  190.  .. 


APPENDIX.  871 

STATE  OF  OHIO,   County,  ss. 

Be   it   remembered   that   on  the day   of A.   D.,    190..,   before 

me,  the  subscriber,  a in  and  for  said  county,  personally  came 

and his    wife,    and    acknowledged    the    signing    and    sealing    of    the 

foregoing   instrument  to   be act  and  deed  for  the  use  and  purposes 

therein  expressed. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  the  day  and 
year  above  written. 

OIL  AND  GAS  GRANT. 

IN  CONSIDERATION  of  the  sum  of dollars,  the  receipt  of  which 

is    hereby    acknowledged grantor,    ha.. granted    and    conveyed, 

and  do.  .hereby  grant  and  convey,  subject  to  the  following  conditions,  unto 

gi-antee .  .  all    the    Oil    and    Gas    in   and   under    the    following 

described  premises,  to-wit :     All  that  piece  or  parcel  of  land  in  the 

of county    of and    State    of containing acres, 

be  the  same  more  or  less. 

This  grant  is  subject,  nevertheless,  to  any  rights  now  existing  to  the 
lessee  by  virtue  of  the  lease  heretofore  given  on  said  land  for  oil  and  gas; 
but  if  said  lease  has  expired  or  become  void,  or  shall  hereafter  expire 
or  become  void,  or  if  no  such  lease  ever  existed,  said  grantee  shall  have  and 
is  hereby  granted,  all  the  rights  and  privileges  of  drilling  and  operating 
on  said  land,  to  produce,  store  and  remove  the  said  oil  and  gas  necessary 
and  usually  granted  to  the  lessee  in  an  oil  and  gas  lease. 

This  grant  and   conveyance   is   made   on   condition   that   said   grantee.. 

do .  .  within days  after  a  well  shall  have  been  drilled  on  said  land  to 

the  usual  depth  for  oil  and  gas,  and  been  properly  completed,  tubed  and 

tested  for  oil,  pay  unto  the  said  grantor,  .the  sum  of dollars. 

If  said  grantee  shall,  as  he  may  do  at  his  option,  omit  to  pay  the  said 

sum  of  $ within  the  time   aforesaid,  then  this  grant   shall   become 

as  absolutely  null  and  void  as  though  it  had  never  been  made,  and  said 
grantor    shall    retain   the    sum    first   above    mentioned    as    full    liquidated 

damages.     Depositing  the  sum  of  $ in  the  bank  at to  the  credit 

of   said   grantor   shall   be   equivalent  to   payment  of  the   same  to   and   its 

acceptance  by  said  grantor 

This  grant  shall  expire years  from  this  date,  if  no  well  shall  have 

been  drilled  on   said  land  by  that  time,  unless  the  said  sum   of  $ 

shall  be  paid  without  the  well  being  drilled. 

This  grant  and  the  conditions,  terms  and  provisions  thereof,  shall  apply 
and  extend  to  the  said  grantor.. and  grantee,  their  heirs,  executors,  ad- 
ministrators  and   assigns. 

IN  WITNESS  WHEREOF  we  have  hereunto  set  our  hands  and  seals  this 

day  of A.  D.,   190.. |. 

Witness  : 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

(Seal) 


872  OIL    AND    GAS. 

I, for  said  county,  do  certify  that and his  wife, 

whose  names  are  signed  to  the  writing  hereto  annexed,  bearing  date  the 
day  of 190.  .have  this  day  acknowledged  the  same  before  me. 

Given  under  my  hand  this day  of 190.  . 


TEXAS. 
OIL  AND  GAS  LEASE. 

THIS    LEASE,    made    and    entered    into    this day    of A.    D., 

190 .  . ,    by    and    between of State    of lessor .  . ,    and 

Petroleum  Company,  a  Texas  corporation,  lessee,  witnesseth: 

The  Lessor. .,  for  and  in  consideration  of  the  sum  of dollar.  .,  paid 

to  the  lessor.. by  the  lessee,  the  receipt  of  which  is  hereby  acknowledged, 
do.. hereby  grant,  demise  and  let  unto  the  lessee,  its  successors  and 
assigns  all  the  oil  and  gas  in  and  under  the  following  described  tract  of 
land,  and  also  the  said  tract  of  land  for  the  purpose  and  with  the  ex- 
clusive right  of  drilling  and  operating  thereon  for  said  oil  and  gas, 
together  with  the  right-of-way  and  the  right  to  lay  pipes  to  convey  water, 
oil,  steam  and  gas,  and  to  have  sufficient  water,  oil  and  gas  from  the 
premises  to  drill  and  operate  wells  thereon  and  on  adjoining  leases,  also 
such  other  privileges  as  are  necessary  for  conducting  said  operations,  and 
the  right  to  remove  at  any  time  any  and   all   property  placed  thereon  by 

the  lessee,  all  that  certain  tract  or  parcel   of  land  situated  in State 

of ,  bounded  and   described  as  follows: containing 

acres,  more  or  less,  but  no  wells  are  to  be  drilled  within feet  of  the 

present  buildings  without  the  consent  of  both  lessor.. and  lessee. 

TO  HAVE  AND  TO  HOLD  the  same  unto  the  lessee  for  and  during  the 
term  of  ten  years  from  the  date  hereof  and  as  much  longer  as  oil  or  gas  is 
found  in  paying  quantities   thereon,  yielding  and  paying  to  the  lessor .  . 

the (  .  .  )  part  or  share  of  all  the  oil  saved  from  that  produced  on  the 

premises,  delivered  free  of  expense  at  the  well  into tanks  or  pipe  line 

to  the  lessor's  credit,  and  should  any  well  on  said  premises  produce  gas 
in    sufficient    quantities    to    justify    the    lessee    marketing    same    off    said 

premises,  the  lessor,  .shall  be  paid  at  the  rate  of dollars  a  year  for 

each  and  every  well,  the  product  of  which  is  marketed  and  sold  off  said 
premises,   the  first  payment  to  mature   si.xty  days  after  a  well   is  turned 

into  a  pipe  line  for  marketing  and  to  be  paid thereafter  while  the 

gas  from   said   premises  is  so   sold. 

Provided,  however,  that  this  lease  shall  become  null  and  void  and  all 
rights  hereunder  shall  cease  and  determine  imless  a  well  is  commenced  on 

said  premises  within from  the  date  hereof,  or  unless  the  lessee  shall 

pay  to  the  lessor,  .a  delay  rental  of per  annum,  payable  quarterly  in 

advance  for  every  three  months  such  commencement  is  delayed  from  the 
time  above  specified  until  a  well  is  commenced,  such  payments  to  be  made 
direct  to  the  lessor ..  either  by  check  mailed  to or  deposit  to 


APPENDIX.  873 

credit  in at and  in  default  of  the  payment  of  such  rental  when 

due  this  lease  shall  become  null  and  void  and  of  no  effect 

It  is  expressly  understood  and  agreed  between  the  lessor,  .and  the  lessee 
herein  that  the  said  lessee  shall  have  the  right  to  hold  this  lease  for  the 
period  of  ten  years  as  above  provided,  and  as  long  thereafter  as  oil  or  gas 
in  paying  quantities  is  produced  therefrom,  if  a  well  is  commenced  as 
above  specified  or  if  the  rental  is  paid  promptly  when. due,  and  the  said 

sum  of dollar,  .this  day  received  by  the  lessor,  .from  the  lessee  is  a 

consideration  for  the  right  of  the  lessee  to  hold  said  lease  during  .said 
term  either  by  commencing  a  well  on  said  premises  as  herein  provided  or 
by  paying  the  rental  above  specified. 

The  lessee  agrees  to  locate  all  wells  so  as  to  interfere  as  little  as  possible 
with   the   cultivated   portions    of   the    farm. 

It  is  agreed  that  all  the  conditions  and  terms  herein  shall  extend  to 
the  heirs,  executors,  successors  and  assigns  of  the  parties  hereto. 

In  witness  wl\ereof  the   lessor.. and  the  lessee  have  hereunto   set  their 
hands  and  seals  the  day  and  year  first  above  written. 
Witness  :  


STATE  OF  TEXAS, 
COUNTY  OF 


Before  me,  the  undersigned  authority,  on  this  day  personally  appeared 

known  to  me  to  be  the  person .  .  whose  name subscribed  to 

the  foregoing  instrument  and  acknowledged  to  me  that executed  the 

same  for  the  purposes  and  considerations  therein  expressed ;   and  on  this 

day  also  appeared   before  me ,  wife   of  the  said ,   who  having 

been  examined  by  me  privily  and  apart  from  her  said  husband,  and  having 
the  said  instrument  by  me  fully  explained  to  her,  she  the  said ,  ac- 
knowledged the  same  to  be  her  act  and  deed,  and  declared  that  she  had 
willingly  executed  the  same  for  the  purposes  and  considerations  therein 
expressed  and  that  she  did  not  wish  to  retract  it. 

Given  under  my  hand  and  seal  of  office  this  the day  of A.  D., 

190... 


K 


INDEX. 


(References  are  to  sections.) 


ABANDONMENT  — 

Acquiescence  in,  effect,  13^ 

Cessure  of  operations,  140 

of  work  after  operations  begun,  141 

Distinction  between  abandonment  and  forfeiture,  137. 

Expense  of  drilling  wells,  recovery,  137 

Extension  of  time,  140 

Failure  to  drill  wells  on  several  leased  premises,  129 

Forfeiture,  see 

Inability  to  complete  work,  173 

Intent  to  abandon  necessary,  137 

Lessor  consenting  to.  effect,  181 

Non-productive  premises,  138 

Partial  of  leased  premises,  169,  170 

Personal  privilege,  137 

Rent  falling  due  after  abandonment,  137 

Suit  to  ca.icel  lease,  186 

Surrender  of  leased  premises,  142 

Temporary  suspensions  of  work,  effect,  140,  141 

Unprofitable  lease,  99 

Waiver  of  or  abandonment,  159,  160 

When  completed,  137. 
ACCEPTANCE  — 

Of  franchise  is  necessary,  471 

ACCOUNT  — 

Co-tenant  must  account  to  fellow  servant,  278,  279 

Effect  of  rendering,  251 

Power  of  court  of  equity  to  enforce  accounting  between  joint  owners, 
282 

Statute  of  Limitations  does  not  bar  right  to  an  accounting,  301 

Suit  to  recover  upon  account  rendered,  282 
ACKNOWLEDGMENT  OF  LEASE  — 

Defective,  effect,  82 

ACQUIESCENCE  — 

Abandonment  of  damages  occasioned  by,  132 
Delay,  effect,  131 

ACTION  — 

Assumpsit  to  recover  price  of  gas,  545 

Forfeiture  of  right  to  occupy  estate  enforced  by,  491 

Inspection  of  meter  to  secure,  555 

Right  of  action  over  by  gas  company  against  wrongdoer,  656 

Suit,  see 

to  recover  for  gas  supplied.  432 

875 


876  INDEX. 

(References  are  to  sections.) 

ADMINISTRATOR  — 

Power  to  execute  lease,  59 
ADVERSE  POSSESSION  — 

Ejectment,  see 

Possession   of   surface   when   adverse  to   owner   of   oil   or   gas,   295   to 
299 
AFRICA  — 

Oil  wells,  7 
AGENT  — 

May  take  lease  after  forfeiture  of  his  principal's  lease,  S9 

ALASKA  — 

Oil  wells,  7 
ALLEGANY  RIVER  —  **' 

Oil  springs  upon  known  to  French,  2 
ANCIENTS  — 

Knew  of  petroleum,  1 

APPURTENANCES  — 

What  passes  as  such  on  conveyance  of  leased  premises,  74 
ARTICLES  OF  COMMERCE  — 

Gas  and  oil  are  such  articles,  350 

ARTIFICIAL  GAS  — 

Corporation  for  cannot  supply  natural  gas,  478,  742 
Gas,  see 
Natural  Gas,  see 

ASSIGNEE  — 

Bound  by  agreements  in  lease,  203 

Default,  assignee  cannot  take  advantage  of,  195 

Equitable,  in'possession  of  premises,  200 

Forfeiture  of  lease  may  declare,  152 

Liable  to  his  assignor,  204  to  209,  215 

Liability  on  covenants  in  lease  or  contract,  94 
if  he  occupies  under  unassigned  lease,  208 
when  he  does  not  take  possession,  209,  211 

Notice  to  of  prior  lease,  G9 

Several  successive  assignees  liable  for  rents,  210 

Substitution  of  releases  lessee,  212 
ASSIGNMENT  — 

Assignee  liable  upon  express  covenants  in  contract,  95 

Consent  to  of  lighting  contract,  414 

Lighting  contract  may  be  assigned,  414 

Rates  for  gas  fixed  in  assignment,  395 

Right  to  occupy  streets,  477 

ASSIGNMENT  OF  LEASE  — 

Assignees  bound  by  agreements  in  lease,  95,  203 
Consent,  refusal  to  give,  196 

Default  in  carrying  out  terms  of  lease,   assignee  cannot  take  advan- 
tage of,  195 
Equitable  assignee  in  possession  of  premises,  200 
Interest  assignee  secures  in  lease,  194 
Judicial  sale,  effect,  199 
Lease,  see 

Lessee  may  make  of  lease,  193  *■ 

Lessor  may  make  of  lease,  193 
Liability  of  assignee,  extent,  203  to  206 

of  assignee  to  his  assignor,  215 

of  assignee  of  part  interest  in  lease,  207 


INDEX.  87' 

(References  ate  to  sections.) 

ASSIGNMENT  OF  LEASE  —  Continued. 

of  assignee  broadened  by  terms  of  assignment,  205 

to  assignee»\vlicn  not  taking  possession,  209,  210 

if  he  occupies  under  unassigned  lease,  208 
Oil  in  tank  does  not  pass,  254 
Option  carries,  19S 
Privity  of  estate,  203 

Release  of  lessee  by  substitution  of  assignee,  212 
Royalties,  see 

may  be  assigned,  202 
Statute  of  Frauds,  effect  upon,  94 
Several  successive  assignees'  liability,  210 
Substitution  of  assignee  is  a  surrender,  143 
Sublessee,  see 

when  not  liable,  217 
Sublease  is  not  an  assignment,  197 
Surrender  of  lease,  168 
Unassignable,  when,  201 
ASSIGNOR  — 

Assignee  liable  to,  215 

Liable  on  account  of  lease  as  surety,  216 

B 

BABYLON  — 

Petroleum  used  by  ancients,  1 
BAKU  — 

Oil  and  gas  wells  of,  1,  9 
BANKRUPT  — 

Trustees  of  liable  for  gas  rents,  546 
BARBADOES  TAR  — 

Use  of  as  a  medicine,  14 
BENZINE  — 

Exploding  when  vised  in  paint,  675 

BIDS  — 

On  lighting  contracts,  41 

BISSELL,  GEORGE  II.— 

Formed  first  oil  company,  5 
Secured  analysis  of  petroleum,  13 

BLANKS  — 

In  lease,  80 

BOUNDARY  LINE  — 

Draining  premises  by  wells  on  adjoining  territory,  171,  172 

Drilling  wells  near  leased  premises,  101,  102 

Of  leased  premises,  109 

Protection  to  oil  or  premises,  101.  102,  112 

Wells  near  to  is  not  waste,  35 
to  protect,  112 
BOUNDARIES  OF  CITY  — 

Extending,  right  of  gas  company  in  new  territory,  419 

BRANDS  — 

Use  of  false  brands  misleading  consumers,  670 

BURDEN  OF  PROOF  — 

Plaintiff  has  in  case  of  negligence,  610 

BURMAH  — 

Oil  wells,  7 


878  INDEX. 

(References  are  to  sections.) 

c 

CALIFORNIA  — 

Oil  wells  of,  2 
CANADA  — 

Early  oil  wells,  2 

Gas  wells  situated  in  territory,  9 

Oil  wells,  7 
CANDELABRA  — 

Fixtures,  when  are,  568 

CARE  — 

Leaks  and  explosions,  see 

Negligence,  see  jt 

CARS  — 

Defective,  used  in  transportation  of  oil,  371,  372 

CASPIAN  SEA  — 

Oil  and  gas  found  near,  1,  8 

O.^SAR,  JULIUS  — 

Refers  to  natural  gas  spring  in  France,  8 
CESTUIS  QUE  TRUSTENT  — 

When  trustee  of  lessee  liable,  213,  214 
CHANDELIER  — 

Fixtures  are,  when,  568 

CHARTER  — 

Is  a  contract,  391 
CHATTEL   REAL  — 

A  lease  may  be,  51 

CHINA— 

Natural  gas,  8 

Natives  used  petroleum  at  early  day,  1 

CITY  — 

Municipality,  see 

COAL  MINES  — 

Drilling  gas  well  through  to  lower  strata,  369 
Laying  pipe-line  above,  support,  368 

COMMERCE  — 

Gas  or  oil  is  an  article  of  commerce,  40 

COMIMON  CARRIERS  — 

Negligence  in  the  use  of  defective  cars,  371,  372 

Oil  shipped  on  trains  carrying  other  goods,  373 

Overcharges  for  carrying  oil,  351 

Passengers  injured  by  exploding  oil,  375 

Shippers  liability  to  servant  of  carrier,  374 
COMIMON  LAW  — 

Rule  566 
COMPOSITION— 

Elements  of  petroleum  and  natural  gas,  11 
CONSIDERATION  — 

Lease,  sufficient  amount  for,  66 

Option  must  have,  71 
CONSOLIDATION  —  * 

Gas  companies  making  must  comply  with  their  several  grants,  485 

CONSTITUTION  — 

Limit  upon  indebtedness  of  cities,  408,  409 
Rates,  see 


INDEX. 


(References  are  to  sections.) 


879 


CONSTITUTION  —  Continued. 

Regulation   of  transportation   of   oil   and   gas   does   not  prohibit,    .350, 

352,  ,353 
Restrictions  on  monopolistic  grants,  441,  442,  443 

CONSTRUCTION  — 

Of  the  provisions  of  lease,  78,  79,  219 

CONSUMER  — 

Abutting  property  only  entitled  to  gas,  528 

Action  against  to  collect  price  of  gas,  545 

Classification  of  consumers.  543 

Common  law  does  not  require  gas  company  to  furnish  gas,  524 

Company  must  supply  line  consumers  with  gas,  525 

Contract,  special  for  supply  of  gas  may  make,  539,  547,  548,  549. 

Deposit  of  money  to  secure  pay  for  gas,  541 

Discriminating  between,  520,  527,  542 

Distress  to  collect  gas  bills,  546 

Extension  of  mains  or  pipes  in  order  to  furnish  with  gas,  529 

Failure  to  supply  with  gas.  531 

to  supply  with  natural  gas,  527. 
Former  tenant,  present  tenant  not  liable  to  pay  his  gas  bills,  54b,  547 
Frost  preventing  company  from  supplying  gas,  534 
Gas  Company,  see 
Heat,  furnishing  consumer  with  gas  for,  price,  542 

Inspection  of  his  promises.  530 

Limiting  liability  for  failure  to  supply  gas,  535 

Mandamus  to  compel  company  to  furnish  gas,  531,  532 

Manufacturer,  price  of  gas  to.  526 

Meter,  see 

Overcharge,  may  recover  back,  544 

Ownership  of  supply  pipe,  550 

Payment  in  advance  for  gas.  540,  541 

Penalties  for  failure  to  supply  gas.  533,  534 

Price  in  other  states  to  fix  price  at  home,  539,  544 

to  be  charged  for  gas.  539  , 

Rates,  see 

Receiver  of  liable  for  gas  bills.  547 

Right  of  consumer  to  discontinue  use  of  gas,  549 

Rules,  see 

must  obey,  537 

need  not  obey  illegal  rules,  537,  538 

Shutting  oflF  supply  for  neglect  to  pay  for  gas,  547 
meaning  of  in  contract.  744 

Supply  of  gas  furnished  only  to  abutter,  528 

Turning  on  and  ofl"  gas,  may  not,  531 

CONTRACT  FOR  LEASE  — 
Damages  for  breach  of,  294 
Exclusive  right  to  oil  or  gas,  90 
Effect  of  taking  possession  of  land,  under,  292 
Indefinite,  effect,  290 
Interest  in  land  may  give,  52 
Merged  in  conveyance  of  premises,  65 
Notoften  drawn  into  controversy,  289 
Rescission  for  fraud.  146 
Surface  of  ground,  right  to  oil,  77 
Unilateral,  what  is,  56 

What  is  a  sufficient  writing  concerning,  291 
What  is  a  sufficient  consideration,  66 


880  INDEX. 

(References  are  to  sections.) 

CONTRACT  FOR  LIGHTING  CITY  OR  TOWN  — 

Action  to  recover  for  gas  supplied  under,  432 

Additional  requirements  may  be  exacted  in  extension  of  time  for  com- 
pletion of  gas  works,  456 

Assessment  of  cost  of  gas  upon  abutting  property,  430 

Assignment  of  lighting  contract,  414 
effect,  94 

Bids  for  lighting,  411 

Breach  of  lighting  contract  by  city,  413 
damages,  413 

Changing,  city  cannot,  417 

Charter  to  furnish  is  a  contract^  391 

Cost  of  city  light,  out  of  what  paid,  426  g> 

Dating  ahead,  462  ^ 

Discontinuing  use  of  gas,  416 

Exhaustion  of  light  appropriation,  no  defense,  428 

Extending  gas  mains,  refusing  to  make,  437 

E.xtending  term  of  contract,  410 

Federal  question,  Avhen  raises,  451 

Gas  furnished  without  contract,  418 

How  executed,  412 

Interest  upon  gas  bills,  433 

Lamps,  what  kind  to  be  used,  434 

Length  of  term  for  light,  409,  461 

Light,  see 

Mandamus  to  compel  auditing  of  city  bills,  431 

Monopolistic  clause  in  contract  does  not  avoid,  452 

Monopoly,  see 

Moonlight  schedule  for  light,  422 

Municipal  offices  interested  in,  effect,  439 

Municipality,  see 

New  territory,  contract  covers,  419 

Ordinance,  when  must  be  general,  460,  461 

Price  to  be  paid  for  light,  423,  425 
•      Rates  for  gas,  see 

Receiver  botind  by,  438 

Rescinding,  413,  415 

Revocation  of  monopolistic  franchise,  447 

Special  made  for  supply  of  gas  at  fixed  price,  539,  547,  549 

Taxation,  exemption  from,  425 

Uncertainty,  421 

United  States  revenue,  adding  amount  to  cost  of  light,  435 

Void,  effect  of  receiving  light  under,  420,  421 

Waiver  as  to  quality  of  gas  or  light  furnished,  436 
CONTRACTOR  — 

Gas  company  may  be  liable  because  of  his  negligence,  605,  681 

Liability  for  causing  leaks  in  gas  mains,  655 
CONVERSION  — 

Oil  in  tanks  or  pipe-lines,  46 
CONVEYANCE  — 

Appurtenances,  what  pass  by,  74 
Merges  contract  for  a  lease,  65 
CORPORATIONS  — 

For  artificial  gas,  cannot  supply  natural  gas,  478,  742 
CO-OWNER  — 

Co-tenant,  see 
Partnership,  see 
Tenants  in  common,  see 


INDEX.  8SJ 

CRpferences  are  to  sections.) 

CO-TENANTS  — 

Accounting  between  for  oil  produced,  278,  279,  282 

Are  not  partners,  311 

Assignment  of  lease^  278 

Confidential  relations  between,  281,  312 

Expense  of  working  joint  property,  283 

Fidelity  relation  between,  288 

Injunction  by,  when  against  trespasser,  285 

Joint  tenant,  see 

Jurisdiction  of  equity  to  secure  accounting  between,  282 

Lease  may  grant  of  joint  property,  275 

License  may  grant  of  joint  property,  275 

May  operate  land  of  co-tenar.cy,  274 

Partnerships,  see 

Payment  of  rent  or  royalty  to  one  co-tenant,  287 

Purchased    by,    when    of    co-tenants"    interest,    281 

Receipt  of  rent  or  royalties,  287 

Suit  to  secure  an  accounting,  278,  279,  282 

Surrender  of  premises,  one  tenant  may  make,  284,  286 

Tenants  in  common,  see 

When  a  tenant  is  bound  by  his  co-tenants'  act,  284 

\^'ith  owner  of  mineral,  280 
COUNCILMAN  — 

Interested  in  lighting  contract,  effect  upon  contract,  439 
COVENANT  — 

Assignee  of  contract,  when  liable  upon,  95 

Breach  of  implied  covenant,  effect,  91 

Diligent  search  for  oil  or  gas  implied,  127 

Free  gas,  agreement  concerning  is  a  covenant,  92 

Implied  to  develop  territory,  104 

to  operate  territory  after  development,  151 
forfeiture  does  not  authorize,  92,  154,  157 

Personal,  what  are,  93 

Purchase  of  tools  and  machinery,  93 

Running  with  lands,  92 

vSearch  for  oil  or  gas  is  implied,  91,  127 

Uncertain,  will  not  work  forfeiture,  165 

When  implied,  91 
CURIOSITY  SEEKER  — 

Injured  by  explosion  of  oil,  376 
CURTESY  — 

Husband's  right  to  oil  or  gas  upon  premises,  264 

D 

DAMAGES  — 

Acquiescing  in  abandonment  of  lease,  effect,  132 
Breach  of  contract  to  give  a  lease,  294 

to  furnish  light,  413,  415 
Compliance  ^A-ith  terms  of  lease,  183 
Duty  of  owner  of  premises  to  prevent,  592 
Entire  leased  premises  must  be  developed,   104  to  107 
Failure  to  develop  premises,  104,  180 

to  deliver  lessor  his  share  of  oil,  231 

to  supply  gas,  533,  534 
Injunction  to  prevent  cutting  off  supply  of  gas,  548 
Instead  of  forfeiture,  192 
Limiting  liability  for  neglect  to  supply  gas,  535 


882  INDEX. 

(References  are  to  sections.) 

DAMAGES  —  Continued. 

Measure  of  for  taking  oil  or  gas  illegally,  33,  108 

for  taking  right  of  way  for  pipe-line,  361  to  364 
Neglect  of  company  must  cause  damage  to  render  it  liable,  604 
Occasioned  by  storing  or  bringing  oil  on  land,  584 
Res  judicate,  107 
Sickness  occasioned  by  small   supply  of  gas,   534 

DEAD  SEA  — 

Oil  found  upon  its  boundaries,  1 
DEBT  — 

Constitutional  provisions  concerning,  408,  409 

Contract  for  light  does  not  create,  408,  409  ^ 

Liability  of  parties  for  debts  of  mining  partnership,  324,  325 

DEED  — 

Conveyance,  see 

Quit  claim  deed  may  create  a  lease,  62 
DESCRIPTION  — 

Sufficiency  of  in  an  oil  lease  or  contract,  76 

DILIGENCE  — 

Agreement  concerning  what  shall  be,  98 

Forfeiture  of  lease,  see 

Greater  required  in  developing  oil  than  coal  lands,  130 

Implied  covenant  to  search  for  oil  or  gas,  127 

Lease,  see 

Operating  premises,  degree  required,   97 

When  work  on  leased  premises  must  begin,  96 

DISCRIMINATIONS  — 

Failure  of  supply  of  natural  gas  does  not  authorize,  527 
Gas  company  cannot  make,  526,  527,  542 
In  care  of  meters,  563 

DISTRESS  — 

To  collect  gas  rents,  546 

DOWER  — 

Assignment  in  mineral  lands,  273 

Right  of  widow  to  operate  wells  upon  lands  assigned  to  her,  261,  262 
273 

DRAKE,  E.  L. 

Dug  first  oil  well,  5 

E 

EAST  LIVERPOOL  — 

Gas  wells,  9 
EJECTMENT  — 

Lessee  may  maintain  to  recover  leased  premises,  20 

ELECTION  — 

To  authorize  city  to  purchase  or  build  a  gas  plant,  517 

ELECTROLYSIS  — 

Expert  evidence  to  show  effect  of,  659 

EMINENT  DOMAIN  — 

Artificial  gas  companies,  power  to  use,  ^57 

Condemning  riglit  of  way  for  pipe  lines,  503 

Conferring  power  of  on  gas  or  oil  companies,  356-358 

Foreign  corporations  empowered  with  right  to  use,  357,  358 

Measure  of  damages  in  taking  ri^ht  of  way  for  pipe  lines,  361  to  364 

Petition  to  condemn  pipe  line  right  of  way,  367 


INDEX.  883 

(References  are  to  sections.) 

ENGLAND  — 

Natural  gas  wells^  8,  9 

Oil  wells,  7 

Refining  petroleum,  13 
ESTOPPEL  — 

City,  when  may  be  to  control  validity  of  monopolistic  grant,  450 

Land  owner,  to  remove  pipes  from  highway,  504 

Occupying  streets  under  void  ordinance,  "479 

When  lessor  may  be  estopped,  182 

When  lessee  may  be  estopped,  84 
EXCEPTION  — 

Consideration  for  grant  of  a  part  of  mineral,  245 

Distinction  between  an  exception  and  reservation,  302 

Eeservation,  nee 

Severance  of  mineral  by  means  of,  303 

Subject  to  liens  of  judgment,  307 
EXCLUSIVE  CONTRACT  — 

Monoply,  see 
EXPENSES  — 

Operating  expense  first  paid,  when,  224,  225 

Recovery  when  there  has  been  an  abandonment  or  forfeiture,  137 

Reimbursement  of  lessee  for  expenses,  190 

EXPLOSIONS  — 

Insurance  cases,  697,  698 

Leaks   and   explosions,   see 

Prospective  damages  occasioned  by  pipe  lines,  363 
EVICTION  — 

Effect  upon  lease,   120,   161 

Erection  of  building  for  machinery  is  not,  120 

Relieves  lessee  from  liability  to  lessor,  241 
EVIDENCE  — 

Care  on  part  of  gas  company  to  prevent  leaks,  658 

Expert,  to  show  effect  of  electrolysis,  659 

Inhalation   of   gas,   660,    661 

Leaks  and  explosions,  .-.•ce 

Notice  of  leaks  in  gas  main,  620,  621,  622 

Presumption  of  negligence  arising  from  proof  of  explosions,  611,   612 

Undue  pressure  in  gas  pipes  at  other  places,  632 


FIRE-POT  — 

Injury  occasioned  by  exploding  gasoline  firepot,  669 
FIRES  — 

Negligence,  see 

Pipe  line  occasioning,  363 
FIRST  OIL  WELL  — 

When  dug,   5 

FIXTURES  — 

Agreement  concerning  may  make  them  personal  property,  567 

Between  mortgagor  and  mortgagee,  571 

Candelabra,  568 

Chandeliers,  568 

Coal  and  mineral  lease  fixtures,  575 

Conveyance  of  premises,  effect  on  fixtures,  577 

Division  of  subject,  565 

Gas  burners,   570 


884  INDEX. 

(References  are  to  sections.) 

FIXTURES  —  Continued. 
Gas  generators,  570 
Gas  machine,  570 
Gas  stoves,  568 
Gasoliers,  568 

Injury  to  freehold  by  removal,  567 
Innocent  purchaser   of   premises,   rights.   567 
Intent  to  constitute,  when   essential,   506 
Judicial  sale  of  premises,  effect  upon,  569 
Landlord  and  tenant  or  between,  573 
Mixers,  568 
Mortgaging,  577 
Oil  and  gas  lease  fixtures,  576 

Pipes  in  house  for  gas,  570,  572,  573  f 

Pipe  lines,  579 
Public  policy,   560 

Removal  after  forfeiture  of  lease,  191 
Sources,  568 

Special  contract  controls,  578 
Trade  fixtuies,  573,  574 
Vendee,  when  entitled  to,   570 

FLAMBEAU  BURNERS  — 
Prohibiting  use,  28,  386 

FOREIGN  CORPORATION  — 

Right  to   exercise   powers   of   eminent   domain,    357,   358 

FORFEITURE  — 

Action  to  declare  forfeiture  of  right  to  occupy  streets,  491 

Monopolistic  contract  for  lighting  city,  452,  454 

Right  to  occupy  streets.  490,  491 

Waiver   by   city   of   right   to    declare   a   forfeiture,    492 

FORFEITURE  OF  LEASE  — 
Abandonment,  see 

Acquiescence  in  delay  in  developing  premises,  131 

Actual  mining  operations  must  commence  within  a  reasonable  time,  133 
Assignee  of  lessor  may  declare  forfeiture,   152 

of  lessee  cannot  take  advantage  of  forfeiture  clause,  195 
Breach  of  implied  covenant,  91 
Cessure  of  work  after  operations  begin,  141 
Clause  concerning  omitted,  effect,  156 
Covenant  uncertain,  effect,  165 
Damages  for  failure  to  develop  premises,  104  to  107 

for  non-compliance  with  terms  of  lease,  183 

instead  of  declaring  a  forfeiture,  192 
Declaration  of  forfeiture  by  lessor,  notice,  158 
Diligence,  agreement  as  to  what  constitutes,  98 

in  beginning  work,  96 

in   operating  premises   after   forfeiture,   97 

required  in  developing  oil  lands,  130 

search  for  oil  required,  137 
Draining  leased  lands  by  wells  on  adjoining  premises.  171,  172 
Excavating  for  oil   means  bringing  it  to   surface,   176 
Expense  of  drilling  wells,  recovery,   137 
Extension  of  time  of  lease.  131,  140 

Failure  to  operate  and  not  failure  to^evelop.   162.   103 
Favorite  equity  when  will  promote  justice,  147,   148,  151 
Fixtures,  see 

and  machinery,  removal,  191 

when  forfeited,  574 


INDEX.  885 

(References  are  to  sections.)' 

FORFEITURE  OF  LEASE  —  Continued. 
Heirs  may  declare,   152 

History  of  change  of  rule  giving  lessor  exclusive  right  to  declare,  149 
Holding  premises  for  speculative  purpose,  not  permitted,  128 
How  may  be  declared,  237,  238 
Implied  covenants  to  operate  premises,   151 

do  not  authorize  forfeiture,   154.  157 
Inability  to  complete  work,  effect,   173 
Lessee  cannot  insist  upon,  153,  155 

cannot  recover  premises  after  forfeiture  incurred,  189 
Lessor  can  only  declare,   148,    149.    151 
Liability  for  rent  after  forfeiture  incurred,  237  to  240 
Lien,  effect  upon  premises,   334 
Machinery,  removal,   191 
Mortgage  of  leasehold  may  work.  174 

Non-development  of  premises  where  no  time  is  fixed,  129 
Notice  of  election  to  declare.   158 
Part  onlj'  of  leased  premises,  169,  170,  189 

of  premises.  111,  112 
Paying  quantities,  see 

what  is  considered  to  be.    134,    135,    136 
Payment  of  rent,  when  will  prevent,  145 

when  will  not  prevent,    178 
Production  of  gas  will  not  prevent  forfeiture  of  an  oil  lease,  164 
Question  of  intention,  184 

for  jury,   185 
Re-entry,  when  necessary,  166 

Reimbursement  of  lessee  for  expenses  incurred,  190 
Relief  from.   187 

Royalty,  failure  to  pay,  effect,   177 
Rule  in  gas  or  oil  leases,  148 

Stranger  cannot  avail  himself  of  a  forfeiture,  153 
Suit  to  cancel  lease,    186 
Surface,  oil  must  be  brought  to.  176 
Surrender   after  assignment,   168 
Time  to  avoid,   188 
Waiver  of,  159,  160 
Wells,  see 

must  be  drilled  to  prevent.   Ill,   112,   175 
Work,  when  must  be  completed,   175 
Unavoidable  accident,  effect.   131 
Void,  in  lease,  means  voidable, 

FORMS  OF  LEASES  — 

See  Appendix 
FRANCE  — 

Natural  gas  and  oil  wells,   7,   8 
FRANCHISE  — 

Acceptance  of  necessary,  471 

Assignment  of,  rates  for  gas  fixed  in  assignment,  395 

Change  of  use,  cannot  be  made,  478 

Consolidation  of  gas  company,  effect,  485 

Construction,  472.  473.  478 

Estoppel  to  contract,  479 

Forfeiture,  exclusive  franchise,  454 
of  right  to  occupy  streets,  491 
waiver  of  right  of  cit.v  to  declare.  492 

Grant  of  right  to  occupy  street  before  company  is  organized,  482 

Length  of  grant,  483 

Monopoly,  see 


886  INDEX. 

(References  are  to  sections.) 

FRAXCHISE  —  Continued. 

Nature  of  discussed.  469,  470 

Natural  gas  grant  does  not  authorize  the  use  of  artificial  gas,  478,  742 

New  territory,  474,  475.  476 

Ordinance,  see 

Power  to  grant  not  property  of  city.  467 

Revocation  of  monopolistic  contract,   447 
when  may  be  made,  489 

Strictly  construed,  472,  473,  474 

Taxing,  731 

Termination  of  life  of  corporation  before  expiration  of  right  to  occupy 
streets,   484 

Town  becoming  a  city,  effect  upon  gas  company,  486  ^ 

Void  ordinance,  effect  upon  franchise,  479  '^ 

What  territory  it  extends  to,  474,  475,  476 
FRAUD  — 

Avoids  contract  for  a  lease,  146 

Co-tenant's  fraud  upon  fellow  tenant,  281,  288 

Fidelity   relations   between   co-tenants,   violating,   288 

Municipal  offices  interested  in  city  contract,  effect,  439 

Partner's  fraud  upon  co-partners,  288,  312,  315 
FREDONIA  — 

Gas  wells,  9 
FREE  GAS  — 

City  contract  for,  424 

Covenant  for  runs  with  leased  premises,  92 

Quantity  lessor  entitled  to  receive,  226.  547 

Royalty  in  gas  used  to  operate  leased  premises,  227 

When  part  of  rent,  225,  226 
FRENCH  — 

Discovered  oil  in  Pennsylvania  at  early  date,  2 
FROST  — 

Breaking  pipes  and  occasioning  leaks,   624 

Entering  pipes,  no  defense  for  failure  to  furnish  gas,  534 

G 

GALICIA  — 

Oil  wells,  1,  7 
■GAS  — 

Artificial  and  natural  gas  not  subject  to  same  statutes,  455,  742 
City  may  furnish  for  commercial  purposes,  512,  513,  515 
Company,    prices    it    may    charge    for    gas,    539 
Consumer,  see 

may    discontinue    use    of    gas,    549 
Dangerous  substance,   care  required   in   handling,   600   to  602 
Delivery  to  consumer,  when  completed,   559 
Deposit  of  money  to  secure  payment  for,  541 
Discontinuing  use  of  by  city,  416 
Early  attempts  to  use  for  light,  17 
Heat,  price  to  be  paid  for  gas,  542 
Inhalation,  evidence  to  show,  660,  661 
License,  743 

Mandamus  to  compel  company  to  furnish,  531,  532 
Measuring.  557.  558 

by  officially  tested  meters,  557 
Meters,  see 
Municipality,  profit  may  make  in  furnishing  its  customers,  515 


INDEX.  887 

(References  are  to  sections.) 

GAS  —  Continued. 
Natural  gas,  see 

same  statutes  do  not  apply  to,  478 
Necessary  of  life,  is  not,  748 
No  contract  for  gas  furnished,  418 
Payment  for,  in  defense  to  suit  on  account,  540.  541 
Poor  quality,  rescission  of  contract  for  gas,  415 
Pressure  in  pipes,  regulating,  3S3 
Price  to  be  charged,  530 
Shutting  off  supply  for  failure  to  furnish  gas,  547 

meaning  as  used  in  contract,  744 
Taxing,  741" 

Turning  off  and  on,  who  may,  531 
Waiver  as  to  quality  of  gas  furnished  for  light,  436 

GAS  BOX  — 

May  be  placed  in  streets,  498 

Use   of   in   sidewalk    occasioning   injury,    680 

GAS  BURNERS  — 

Are  fixtures,  570 
GAS  COMPANY  IN  CITIES  AND  TOWNS  — 

Accepting  provisions  of  subsequent  ordinance, 
effect  upon  rates.  396 

Assignment  of  franchise,  effect  upon  rates,  395 

Conditions  of  grant,  must  perform,  472 

Consolidation,  effect,  485 

Consumer,  see 

must  be  furnished  gas,  525 

Duty  to  protect  the  public  and  its  patrons,  599 

Franchise,  acceptance  of  necessary,  471 
nature  of,  469,  470 

Grant  to   occupy  streets   strictly  construed,  473 

Leaks  and  explosions,  see 

Natural  gas  company  cannot  be  organized  under  artificial  gas  statutes, 
455,  742 

Quasi  public  corporations,  401 

Rates  for  gas,  sec 

Regulations  of  by  municipality,  399,  480 

Streets,  see 

Supplies  furnished  to,  liable,  747 

Taxing,  741 

Unlawful  combinations,  may  not  make,  459 

GAS  FITTER  — 

Liable  for  occasioning  explosion,  657 
Plumber,   see 

GAS  GOVERNOR  — 

Injunction  to  restrain  use  of,  553 
GAS  MAINS  — 

Extension,    when   company    must   make,   437 

Natural  gas  mains  using  for  artificial  gas,  478,  742 

Not  an  additional  burden  on  fee.  500 

Ordinance  necessary  to  authorize  placing  in  street,  460 

Pipes,  see 

Taxed  as  personal  property.  730 

GAS  POSTS  — 

Leaving  in  street  after  franchise  has  ended,  499 


888  INDEX. 

(References  are  to  sections.) 

GAS  WORKS  — 

Building  under  void  grant  or  franchise,  457 
City's  gas  plant,  733 

how  pay  for,  430 
Enjoining  construction,  595 
Extension  of  time  to  complete,  456 
How  city  may  pay  for,  430 

Imperfectly  constructed,   occasioning  injury,   683 
Lease  of  its  plant  by  city,  522 
Mortgaging,  348 

cannot  be  mortgaged,  339 
Municipality  may  own,  511,  512,  513 

may  take  stock  in  private  company,  518 

must  be  sole  proprietor,  518 
Nuisance,  see 

Option  of  city  to  purchase,  458 
Polluting  well  or  spring  near  by,  581 
Right  of  city  to  purchase  of  gas  company,  519 
Sale  by  city  of  its  plant,  521 
Taxing,  733 
Trustee  to  operate  city's  plant,  520 

GASOLIERS  — 

Fixtures  are,  when,  568 

GASOLINE  — 

Fire  pot  for  exploding,  669 

Leaks  and  explosions,  see 

Oil,  see 
GERMANY  — 

Oil  wells,  7 

GOVERNMENT  LANDS  — 

Entry  of  government  oil  lands,  45 

GRASS  — 

Proof  of  effect  of  escaping  gas  on  growing  grass,  662 

GREEK  FIRE  — 

Used  by  ancients,  1 

GUARDIAN  — 

Leasing  ward's   property,   57,  256 
When  may  not  drill  for  gas,  35 

GUEST  — 

May  recover  damages  from  gas  company,  641 

H 

HAWAIIAN  ISLANDS  — 

Oil  wells,  7 
HEAT  — 

Natural  gas  company  cannot  be  organized  under  statute  for  formation 
'  of  heating  companies,  39 

Price  to  be  paid  for  gas  for  heating  when  price  of  gas  for  light  is 
fixed,  542 

HEIR—  ^ 

Interest  of  in  gas  lease,  57 
May  declare  forfeiture,  152 
Rights  in  mining  partnership,  315 

HERODOTUS  — 

Speaks  of  petroleum,  1 


(  INDEX.  889 

(References  are  to  sections.) 

HIGHWAYS  — 

Acquiescence  in  use  of  for  pipes,  504 

Condemnation  of  right  of  way  in  for  pipes,  503 

Consent  of  city  to  lay  pipes  in,  when  not  necessary,  468 
of  county  to  lay  pipes  in,  506 

Control  of,   464 

Crossing  with  pipe-line,  506 

Defined,  463 

Franchise  to  occupy  discussed,  469,  470 

Injuries  occasioned  by  laying  mains  therein,  682 

Natural  gas  beneath,  who  owns,  306 

Oil  beneath,  who  owns,  306 

Pipes  laid  in  an  additional  burden  on  fee,  502 

Removal  of  pipes  from  unlawfully  laid  tliercin,  508,  509 

Revocation  of  license  to  use  for  pipes,  507 

Streets,  see 

Surface   cannot  be   used   for   pipes,   510 

Use  of  for  private  purposes,  465 
for   pipe-lines,    360 
HISTORY  — 

Ancients  knew  of  petroleum,  1 

Early  wells  in  America,  2  to  0 
HOMESTEAD  — 

Husband  may  lease,  62 

Wife  must  sign  lease,  57 


INDEBTEDNESS  — 

City's  contract  for  light  does  not  create,  408,  409 

INCOME  — 

Defined,  224 
INCORPOREAL  HEREDITAMENTS  — 

License  to  drill  for  oil  may  be,  50,  63 
INDIA  — 

Oil   wells,   7 
INDICTMENT  — 

Obstructing  streets,  494 

Waste  of  natural  gas  or  oil,  598 
INFANT  — 

Lease  of  oil  or  gas  land  cannot  make,  256 

INFLAMMABLE   OILS — 

Judicial  notice  concerning,  41 

INGRESS  AND  EGRESS  — 
Right  to   have,   74 

INJUNCTION  — 

Building  of  gas  plant,  preventing.  595 

Gas  governor,   to  compel   removal,   553 

Lessee  entitled  to  protect  leased  premises.   103 

Mandatory  to  compel  turning  on  of  gas,  548 

Nuisance,  restraining,  594,  595 

Ordinance,  to  prevent  passage  by  city  council,  453 

Pipes,  protecting.  496 

Preventing  the  cutting  off  of  gas,  548 

Protecting  right  to  use  streets,  481 

Restricting  the  laying  of  pipes  in  street,  487 

Waste  of  natural  gas,  preventing,  28,  35,  598 


890  INDEX. 

(References  are  to  sections.; 

INSPECTION  — 

Company  may  inspect  premises  furnished  with  gas,  530,  615 
Pipes  must  be  inspected  by  gas  company,  615 
Right  of  company  to  make  of  premises,  590,  615 
State  may  require  of  oil,  388 
INSPECTOR  — 

State  inspector  of  gas,  see  Taxes 
INSURANCE  — 

Benzine  and  burning  or  chemical  oil,  694 

Cleaning  clothes  with  gasoline,  effect  on  insurance  policy,   718 

Conflict  between  rider  or  written  part  and  printed  part  of  rider,  688 

Contiguous  buildings,  what  are,  690 

Custom  may  control  terms  of  policy,  706 

Damages,  right  of  company  to  recover,  724 

Death  caused  by  inhaling  gas,  726 

Destroying  vermin  in  house  with  gasoline,  718 

Drug  store  keeping  ex])losive  oils,  713 

Exemption  clause  omitted,  697 

Explosions,  697,  698 

Extent  of  prohibited   use,   702 

Factory  using  gasoline,  712,   716 

Failure  to  disclose  the  use  of  oil,  699 

French  electric   fluid  equivalent  to  benzine,   694 

Furniture  store  using  oil  for  cleaning,  711 

Gas  company  causing  fire  liable  to   insurance   company,   725 

Grocery  keeping  oil  for  sale,  709 

Hazard  not  increased,  policy  avoided,  700 

Hazardous  articles,  occasional  use,  703 

Implied   consent  to   make   use   of   prohibited   articles,    706 

Increase  of  risk,  704 

Inhaling  gas  covered  by  accident  or  life  policy,  726 

Judicial  notice  of  nature  of  oils,  41 

Keeping  oil.  meaning  of  term,  707 

Kerosene  oil,  when  vise  of  prohibited,  694 

use  of  for  fires,  695 
Lamps,  filling  in  day  time,  694 

failure   to  extinguish,   693 

time  to  extinguish,  692 
Laundry  using  gasoline,  714 
Lights,   oil   used   for,   706 
Lubricating  oils,  keeping,  694.  719 
Machinery,  keeping  oil  for,  eff'ect  on  policy,  694,  719 
Oil  for  illumination,  691 

upon   premises,   694 
Owner  of  premises  must  violate  terms  of  policy  to  avoid  it,  696 
Paint  shop  using  oils  and  benzine,  711,  716 
Painter  keeping  oils  and  using  them,  716.  717 
Patent  leather  factory  using  gasoline,  715 
Powder  exploding  and  causing  damages,  697 
Prohibited    use    not   occasioning   loss,    695 
Premises,  what  constitutes,  680 
Proof   of   custom   of   the   usual    practice,    705 
Release  by  the  insured  of  person  causing  loss,  724 
Risk  increased,  effect,  704  * 

Rope   factory   using   oil   on   premises,   712,   716 
Store  keeping  oil  for  sale,  70S 
"Storing"  meaning  of  term,  707 
Tenant  violating  provisions  of  policy,  696 
Torch,  using  to  remove  paint  from  building,  717 


INDEX.  891 

(References  are  to  sections.) 

INSURANCE  —  Continued. 

Use  of  oil  allowed,  701 

Wagon-shop   using  oil,    711 

Waiver  of  illegal  use  of  building,  720,  721 

acquiescing  in  prohibited  use  of  building,  721 

adjusting  loss  or  accepting  proof  without  objection,  723 

receiving  proof  with  knowledge  of  prohibited  use,   722 

Watch-maker  using  oil,  710,  712 

Warranty  as  to  conditions  of  store,  700 

Written  part  controls  printed  parts,  688 
INTEREST  — 

On  over-due  gas  bills,  433 

On  royalties  and  rents,  232 
INTER-STATE  COMMERCE  — 

Overcharges  by  carriers  of  oil,  351 

Transportation  of  oil  or  natural  gas,  350,  351,  352,  353,  384 
IONIAN  ISLANDS  — 

Oil   wells,    1,   7 
ITALY  — 

Natural   gas   wells,  8 

Oil  wells,  7 


JAPAN  — 

Natural  gas,   8 
Oil  wells,  7 

JESUITS  — 

Refer  to  oil  springs  in  America,  2 

JOINT  LEASE  — 

By    separate    land-owTiers,    86 

JOINT  TENANCY— 

Illustrations   of    in   mining   enterprises,    317 

JOINT  TENANTS  — 

Are  not  partners,  312 

Co-tenants,  see 

Payment  of  rents  or  royalties  to,  230 
JUDGMENT  — 

Lien  on  exception  or   reservation,   307 
JUDICIAL  NOTICE  — 

Burning    fluid^    41 

Chemical  oil,  41 

Concerning  operation  of   oil   wells,   42 

Courts  take  of  properties  of  oil  and  gas,  41,  42,  382 

Taken  of  dangerous  properties  of  gas,  382 
JUDICIAL   SALE  — 

Transfer  of  lease  by  sale,  199 

JURY  — 

Contributory  negligence  a  question  for  it,  652 
Forfeiture  a  question  for  it,  184,   185 
Questions  for,  in  cases  of  negligence,  652 

K 

KALM.   PETER  — 

Describes  oil  wells  in  Ohio  and  Pennsylvania,  2 


892  INDEX. 

(References  are  to  sections.) 

KENTUCKY  — 

Early  oil  springs,  2 
KENYON    COLLEGE  — 

Gas  wells,  9 
KEROSENE  — 

Judicial   notice   concerning,   41 
KIES,   SAMUEL  M.— 

Sold  petroleum  as  a  medicine,  14 

L 

LAKE  — 

Ownership  of  oil  and  gas  beneath,   306  ^* 

LAMPS  — 

Extinguishing  pursuant  to  provision  in  insurance  policy,  692,  693 
What  kind  to  be  used  under  gas  contract,  434 
LAMP-POSTS  — 
Defined,   434 

Removal,  434  ' 

LANDLORD   AND   TENANT  — 

Contributory  negligence  of  tenant,  654 

Fixtures,  who  entitled  to.  573 

Right  of  action  against  tenant  for  damages  occasioned  bv  gas  explosion, 

645 
Tenant,  see 
LARCENY  — 

Gas  a  subject  of  theft,  743 
Oil  in  earth,  26 
Oil  in  tanks  or  pipe-line,  46 
LEAKS  AND  EXPLOSIONS  — 

Available   force  of   gas   company  to  prevent  leaks,   616 
Breaking  of  pipes  for  lack  of  support,  625 

occasioned  by  ordinary  use  of  streets,  623 
Burden  to  show  negligence  of  company,  610 
Care  on  part  of  gas  company,  evidence  to  show,  658 

required  of  company  to  prevent,  599,  600 
Child,  negligence  of  its  parents  may  defeat  its  cause  of  action,  653 
Company  misleading  plaintiff  as  to  the  extent  of  danger,  627 
Concerning  negligence  of  two  or  more  defendants,  605 
Contractor's  negligence,  655 
Contributory  negligence  of  plaintiff  defeats  his  cause  of  action,  048 

question  for  jury,  652 
Control  of  gas,  company  must  maintain,  601 
Cutting  off  supply  of  gas  to  pievent  injury,  duty  of  property  owner 

to  make.  650 
Deception  used  in  sale  of  dangerous  oil,  678 
Defective  barrels  used  in  shipping  oil,  374 
Degree   of  care  required  of  gas  company.   602 
Duty  of  gas  company  to  prevent  leaks,  599 

to  make  immediate  repairs,  616 
Evidence  in  cases  of  inhaling  gas,  660 

to  show  due  care  on  gas  company's  part,  658 
to  show  other  leaks,  621 
of  leaks,  022 

of  undue  pressure  in  pipes  at  other  places,   632 
of  notice  to  gas  company  of  danger  to  mains,  626 
to  show  effect  upon  growing  vegetation.  662 
Excavation   near   pipe-line   causing   leaks,   625 
Expert  evidence  to  show  effect  of  electrolysis,  659 


INDEX.  893 

(References  are  to  sections.) 

LEAKS  AND  EXPLOSIONS  —  Continued. 
Exploding  tank  injuring  servant,  684 
Explosion  occasioned  by  violation  of  statute,  607 
Failure  of  company  to  discover  place  of  leakage,  613 
Frost  occasioning  leak,  624 
Gas-fitter  igniting  escaping  gas,  liability  of  gas  company,  638 

liability,  657 
Gas   following   supply   pipe    from   main,   629 
following  sewer,  629 
percolating  through  soil,  629 
turned  on  by  owner  or  stranger,  644 
Guest  of  family  may  recover  damages  of  gas  company,  641 
Implied  warranty  in  sale  of  illuminating  oil,  679 
Inhalation  of  gas,  660,  661 
Insurance,  see 
Inspection  of  premises  to  prevent  leaks,  530 

to  detect  leaks,   615 
Inspector,  gas  company  must  employ,  637 
Intervening  agency,  614 

Landlord's  right  of  action  against  tenant,  645 
Laying  gas  mains  on  bed  of  navigable  river,  608 
Lessee's  negligence,  655 
Municipality  liable  for  damages  occasioned  by  it  in  operating  plant, 

628 
Neglect  of  gas  company  must  cause  damage  to  render  it  liable,  604, 

606 
Negligence  in  turning  off  gas,  644 

Negligently  permitting  oil  to  escape  upon  ground,  671 
Negligeikt  parent,  wife  or  servant,  653 

Night  watchman,  must  be  maintained  to  detect  leaks,  603 
Notice  of  leaks,  duty  of  company,  617,  618 

when  not  necessary  to  fix  gas  company's  liability,  619 
Oil  exploding  on  trains,  375,   376 

escaping  from  refinery  and  exploding,  672 
Overwhelming  disaster,   liability  of  gas  company,   609 
OwTier  of  premises,  when  liable  to  injured  person,  647 
Person  on  premises  by  license  may  recover  damages,  640 
Plaintiff  must  show  due  care  on  his  part,  648 
Pressure   of   gas,   undue,   efTect,    604 

Presumption  of  negligence  owing  from  proof  of  explosion,  611,  612 
Property  owner's  duty  to  notify  gas  company  of  leak,  626 
Question  of  negligence,  when  for  jury.  663 
Removal  from  premises  to  escape  personal  injury.  649 
Repairing  consumer's  pipes  or  fixtures,  gas  company  undertaking  to 

make,  634 
Rescuer  injured  by  negligence  of  oil  or  gas  company,  673 
Reversioner's  right  to  recover  damages,  654 
Sale  of  oil  below  fire  test,  678 

in  violation  of  statute,  followed  by  explosion,  677,  679 
Searching  for  leaks  with  lighted  candle,  051 
Servant  of  gas  company   causing  explosion.   633 

of  oil  company  injured  by  defective  appliances.  670 
Sewer  gas  driven  into  house  by  escaping  illuminating  gas,  636 
Shade  trees  injured  by  escaping  gas,  635 
Shrubbery  injured  by  escaping  gas.   635 
Shutting  off  gas  and  depriving  city  of  light,  609 
Stop-cock  on  Street  line,  who  may  open,  613 
Stranger  turning  on  gas.  644 
Tenant's  right  of  action  against  landlord.   646 

contributory  negligence  may  bar  his  landlord's  right  of  action,  bo4 


894:  INDEX. 

(References  are  to  sections.) 

LEAKS  AND  EXPLOSIONS  —  Continued. 

Third  person  causing  explosion,  637,  638.  643 
Undue  pressure  m  gas-mains  causing  leak,   631 
Withdrawal  of  gas  from  mains  without  notice,  630 

LEASE  OF  OIL  OR  GAS  LAJsDS  — 
Acceptance   necessary,    84 
Acknowledgment  of  defective,  82 
Administrator,  power  to  execute,  60 
Agent  of  lessee,  when  may  take  lease,  89 
Assignment  of  lease,  sec 
Assignee  bound  by  terms  of  lease,  203 

having  a  prior  lease,  69 
Blanks  in  unfilled,  effect,  80  K 

Boundaries  of,  how  determined.  109 
Cancellation  by  suit  for  failure  to  develop,  186 
Change  of   by   parol   agreement,   83 
Chattel   real,   may   be,    51 
Conditional  oil  or  gas  lease,  53,  54 
Consideration,    78,    79 

by  court,  48 

may  bo  purchase  money,  245 

what  is   sufficient,   66 
Construction,  48,  219 
Co-tenant,  275 
Contract  for  not  many.  289 

damages  for  breach  of,  294 

giving    interest   in    real    estate,    52 

indefinite,   291 

specific  performance,  293 

what  is  sufficient  for  lease,  291 
Damages  for  failure  to  develop  premises.   104  to   106 

measure    for    taking    oil    or    gas    illegally,    108 
Default  in  developing  lessee  cannot  take  advantage  of,  237,  238 
Denial  of  tenancy,  ?ffect,   122 
Description  of  premises  leased,  76 
Development,   104  to   107 
Diligence  required  of  lessee,   54 

in   beginning    work,    96 

in  operating  premises  after  development,  97 
Duration  of  lease^  91 

of  ordinary  lease,  126 
Ejectment   in  favor   of   lessee,   120 
Entire  premises  must  be  developed,  104  to  106 
Estoppel,  when  lessee  estopped,  84 
Eviction  of  lessee  terminates,  120,  161 
Exclusive  right  of  lessee  to  oil  or  gas,  57,  90 
Excuse  for  not  drilling  test  wells,  113 
Execution  of  defective,  82 

how   must   be    made,    81 
Extent  of  territory  covered  by,  77 
Extension  of  time  may  amount  to  a  new  lease,  70 
Father  cannot  make  a  lease  of  child's  lands,  256 
First  oil  lease  executed  in  America,   16 
Fixtures,  see 

removal   from  premises,   575  to  5'jr9 
Forfeiture  by  breach  of  implied  covenant,  91 
by  mortgage  of  leasehold  premises,   174 
lessee  cannot  insist  upon,  155 
Forms,  appendix,  see 


INDEX.  895 

(References  are  to  sections.) 

LEASE  OF  OIL  OR  GAS  LANDS  —  Continued. 
Free  gas  granted  by  is  a  covenant,  92 
Guardian  leasing  ward's  premises,  •2.56 
Holding  for  speculative  purposes.   128 
Homestead,  how  leased,  57,  62,  258 

power  of  husband  to  lease,   62 
How  to  execute,  255  to  258 
Impairing  value  of  by  lessor,  100 

value  of,   100 

value  of  by  operating  on  adjoining  territory,  101 
Implied  covenant  to  develop,  91 

covenant  to  search  for  oil  or  gas,  127 
Incorporeal  hereditament,  when  is,  50 
Infant   cannot  make,   256 
Ingress  and  egress  to  leased  premises,  74 
Injunction  to  protect  rights  of  lessee,   103 
Interest  of  lessee  in  various  leases,  57 
Joint,  given   by  separate  owners,   86 
Lessee's  right  of  action  against  gas  company,  642 
Lex  loci  controls,  49 
License,  when  is,  50 

when    is    not,    61 
Life   tenant   giving,    256 
Limitations.  256 
Married    woman,    257 
Merger  in  fee.,  65 
Mortgaging,  341  to  347 

Natural  gas,  lessee  not  entitled  to  under  oil  lease,  118,  119 
New  lease  may  become,   73 

effect  upon  rent  or  royalty,  236 
Non-development  of  premises  where  no  limit  is  fixed,  129 
Notice  of  former  lease,  69,  88 

of   former   license,   62 

to  one  of  several  lessees  sufficient,  87 
Oil  lease  does  not  give  title  to  gas,  118,  119 
Operations  under,  when  must  begin,  96 
Option,  revocation,  17..  72 

to    extend   term,    68 

to  pay  rent  or  drill  well,  73 

to   purchase   after   development,    67 
Oral  change  discharging  or  changing  rents,  247 
Owner  of  land  may  grant  a  lease,  255 
Partition  of  mineral  lands,  276,  277 
Parol,  change  of  written  lease  by  parol  agreement,  83 
Parol  lease  is  only  a   license,  62 
Paying  quantities,  see 

as  used  in  a  lease,  134,  135,   136 
Peculiarities   of   oil    leases,   47 
Personal  covenants  in,  what  are,  93 
Possession  of  premises,  lessee  cannot  recover  after  forfeiture  incurred, 

189 
Printed   form  as   evidence,   84 
Protecting  boundaries  of  lease,  112 
Quieting  title  to  in  lessee,  103 
Receiver,  see 

when  will  be  appointed,  300 
Rescission  for  fraud,  146 
Reimbursing  lessee  for  expenses,  190 

when  title  fails,   121 


896  INDEX. 

(References  are  to  sections.) 

LEASE  OF  OIL  OR  GAS  LANDS  —  Continued. 

Release  of  lessee  by  substitution  of  assignee,  212 

Rents,  lessee  must  pay,  180 

Royalties,  see 

Sale  of  oil  and  gas,  and  not  a  lease,  58 

Second  supersedes  first,  69 

Signing  by  lessee  not  necessary,  85 

Statute  of  Frauds,  concerning,  75,  291 

Substitution  of  tenants,  efTect,  143 

Surface,  right  of  lessee  to  use,  77 

Taxing,   741 

Tenants   for   life,   261   to   273 

from  year  to  year,   259,  260 

from  year  to  year,  lease  exists,  55 

from  year  to  year  or  at  will,  P5 
Termination  by  failure  to  keep  termsi  of  lease,  237 

when  occurs,  91 
Territory  covered  by  lease,  77,  78 
Test  well,  see 

depth,  113,  115 
Texas  lease,  consideration,  56 
Title  to  oil  or  gas,  where  rests.  34,  53,  54 
Trustee  of  lessee  is  not  a  cestui  quo  trustent,  212,  214 
Uncertainty,  eflfect  upon  unconscionable  contract,    123 
Unilateral,  may  be,  56 
Unprofitable,  how  determined,  99 

may  be  abandoned,  99 

what  is,  99 
Waste  as  between  lessees,  35 
Wells,  see 

contract  to  drill  in  vicinity,  125 

diameter,  124 

depth,  115 

location  upon  premises,  109,  110 

locating  on  strangers'  land  by  mistake,  116 

number  to  be  drilled.  111 

selection  of  site  for,  109,  110 

shooting,  117 

shooting,  when  may  be  prohibited,  117 

when  need  not  be  drilled,  114 
Wife  should  join  in  husband's  lease,  258 
Written  and  printed  clause  is  conflicting,  80 
LEASE  OF  GAS  WORKS  — 

City  may  lease  its  gas  works  to  private  company,  522 
LEASEHOLD  — 

Fixtures  situated  upon,  575  to  579 
LEGISLATURE  — 

Flambeau  lights  may  prohibit,  28,  386 

Inspection  of  oil  may  require,  387 

Monopoly,  see 

Monopolistic  contracts  may  authorize,  441,  442,  443 

Plugging  wells,  may  require,  43 

Power  to  prevent  waste  of  natural  gas,  28 

to  regulate    use  of  gas  and  oil.  25 

to  control  production  of  gas,  382   > 

to  authorize  monopolistic  grants,  449 
Public  safety  may  protect,  382 
Pumping  gas,  may  regulate.  29 
Rates  for  gas,  when  may  change,  400  to  403 


INDEX.  897 

(References  are  to  sections.) 

LEGISLATURE  —  Continued. 

Revocation  of  monopolistic  contracts,  447 

Transportation  of  oil  and  gas,  limiting,  40 

Use  of  the  word  "  lease  "  does  not  make  instrument  a  lease,  48 

Waste  of  natural  gas  may  prevent,  385,  386,  387 

Wells  near  boundary  line  of  lease,  regulating,   102 

May  require  them  to  be  plugged,  385 

LESSEE  — 

Co-lessee  purchasing  leased  lands.  65 

Default  in  lease,  cannot  take  advantage  of,  237,  238 

Denying  tenancy,  effect,  122 

Diligence  required  of  to  develop  leased  premises.  54 

Draining  leased  premises  by  operations  on  adjoining  territory,  101 

Ejectment  mav  maintain  for  premises,  120 

Eviction,  effect,  161 

Forfeiture,  cannot  insist  upon,  155,  238,  239 

Lea.se,  see 

Liability  for  leaks  in  gas  mains,  655 

Rents  must  pay,  180 

Right  of  action  against  gas  company,  642 

Signing  lease,  need  not  do,  85 

Tax  must  pay,  when,  741 

LESSOR  — 

Forfeiture,  see 

Lease,  see 

Taxes,  when  must  pay,  741 

When  estopped,  182 

LEX    LOCI  — 

Law  of  governs  provisions  of  lease,  49 

LICENSE  — 

Co-tenant  may  give,  275 

Definition  of,  and  illustrations.  62 

Dissolution  of  partnership  revokes,  64 

Exclusive  license  to  take  oil  or  gas,  90 

Grant  to  occupy  streets  with  gas  mains,  489 

Illustrations,  57 

Interest  in  land,  when  creates,  62 

Lease  when  not    a.  license,  31 

Notice  of  prior  lease,  02 

Parol,  62 

Personal  privilege,  when  is,  62 

Quit  claim  deed  may  create,  62 

Revoking  right  to  lay  pipe-line,  366 

when  cannot  be  done,  63,  64 
When  creates  an  incorporeal  hereditament,  50 

LIEN  — 

Judgment  is  a  lien  on  a  reservation  or  exception,  307 
Mechanics'  Lien,  see 
Partner's,  for  money  advanced,  323 
Royalty  is  upon  assets  in  hands  of  receiver,  253 
LIFE-TENANT  — 

Accounting,  rule  as  to,  279 

Estoppel  of  remainderman.  272 

Exhaiisting  oil  or  gas,  271 

Lease  may  make.  256 

New  wells  may  not  drill.  263 

Reversioner  or  remainderman  opening  wells.  267 

Title  to  oil  illegally  severed  from  premises,  269,  270 


898  INDEX. 

(References  are  to  sections.) 

LIFE-TENANT  —  Continued. 

Waste  must  account  for,  268 

When  may  drill  well,  265 
LIGHT  — 

Early  use  of  gas  for  lighting,  17 
LIGHTING  CONTRACTS  — 

Action  to  recover  for  gas  supplied,  432 

Appropriation  for,  when  necessary  to  render  contract  valid,  427 

Assessing  costs  upon  abutting  property,  430 

Assigning  lighting  contract,  414 

Bids  for  lighting,  411 

Contract,  see 

city  cannot  change,  417 

Cost  of,  out  of  what  fund  paid,  426 

Dating  contract  ahead,  462 

Discontinuing  use  of  gas,  416 

Exempting  gas  companj^  from  taxation,  425 

Extension  of  gas  mains,  refusing  to  make,  437 

Extending  term  of  contract,  410 

Free  light,  424 

Furnishing  to  city  without  contract,  418 

How  executed,  412 

Indebtedness  for,  constitutional  limit  upon,  408,  409 

Interest  on  over-due  gas  bills,  433 

Lamps,  kind  to  be  used,  434 

Length  of  term  of  contract,  409,  461 

Mandamus  to  compel  auditing  of  light  bills,  431 

Monopoly,  see 

Moonlight  schedule,  422 

Municipality,  see 

New  territory,  contract  covers,  419 

Offices  of  city  interested  in  contract,  effect,  439 

Power  of  city  to  contract  for  light,  407 

Price  to  be  paid  for  gas,  423,  425 

Rates,  see 

Receiver  bound  to  furnish,  438 

Rescission  of  contract  for  gas,  413,  415 

Term  for  light,  for  how  long  it  may  be  made,  409,  461 

United  States  revenvie  added  to  cost  of  gas,  435 

Void  contract  for  gas,  effect  of  receiving  gas  under,  420 

Waiver  of  quality  of  gas,  436 
LOSS  — 

Implied  covenant  to  work  wells  at  a  loss,  91 
LUNATIC  — 

Cannot  execute  a  lease  on  his  lands,  256 

M 

IVIACHINERY  — 

Fixtures,  see 

Removal  after  forfeiture  of  lease,  191 
MALICE  — 

Element  of  damage  in  boring  well,  32 
MANDAJVIUS  — 

Auditing  gas  bills,  to  secure,  431 

Insufficient  quantity  of  natural  gas,*no  defense,  531 

Payment  of  bills,  to  compel,  431 

Permit  to  occupy  street,  to  secure,  480 

Subscribing  to  illegal  rules  and  regulations,  538 

To  secure  supply  of  gas,  531,  532,  538 


INDEX.  899 

(References  are  to  sections.) 

MARCO  POLO  — 

Refers  to  natural  gas,  8 
MARRIED  WOMAN  — 

Interest  in  reservation,  308 

Should  join  her  husband  in  lease  of  his  lands,  258 

When  may  lease  her  lands,  257 
MAYOR  — 

Interest  in  city  contract  for  light,  439 
MECHANIC'S  LIENS  — 

Assignment  of  claims  carries,  338 

Attorney  fees  covered  by  assignment  of  claims,  338 

Contract  necessary  to  establish,  328 

Custodian  entitled  to,  331 

Derrick,  lien  for  building,  330 

Description  of  land  in  notice,  337 

Foreman  entitled  to  take,  331 

Forfeiture  of  lease,  effect,  334 

For  what  labor  a  lien  may  be  obtained,  330 

For  what  material  furnished  a  lien  may  be  obtained,  329 

Labor  or  material  must  be  furnished  under  a  contract,  328 

Lubricating-  oil  furnished  for  machinery,  327 

Machinery  for  leased  premises,  329 

Notice  of  claim  of  lien,  337 

Oil  refinery  subject  to,  334 

On  plant  of  public  gas  company,  339 

Overseer  entitled  to,  331 

Paraffine  works  subject  to,  340 

Pipe  furnished  for  well.  329 

hauling  for  use  in  well,  330 

Priority  of  liens,  336 

Retroactive  effect  of  mechanic  lien  laws,  335 

Superintendent  entitled  to,  331 

Tools  furnished  mine,  329 

Upon  what  interest  it  may  be  taken,  332 

Well,  drilling,  gives,  333 
MEDICINE  — 

Barbadoes  Tar.  14 

Petroleum  used  as,  14 
MERGER  — 

When  license  merged  in  fee,  65 

METER  — 

Action  to  secure  inspection,  555 

Charging  rent  for  unless  a  certain  quantity  of  gas  is  used,  562 

Consumer,  see 

Control,  553 

Defined,  551 

Delivery  of  gas,  complete  when  has  passed  meter,  559 

Discrimination  in  use,  563 

Extra  charge  for.  561 

Fixtures,  when  meters  are,  568 

Governor  to  control  supply  of  gas,  553 

Inspection  by  conipany,  555 

official,  556 

official  when  measurements  conclusive,  557 
Measurements  of  quantity  of  gas  used,  558 

officially  tested  meters,  557 
Nimiber  company  must  furnish,  552 
Officially  tested  "meters  conclusive  in  their  measurements,  557 


900  INDEX. 

(References  are  to  sections.) 

METER  —  Continued. 

Removal,  564 

Rent  for  may  be  charged,  562,  564 

Rules  and  regulations  concerning,  560 

Taxing,  556 

Testing,  556 

Unreasonable  requirements,  554 

Who  must  furnish,  552 
MEXICO  — 

Oil  wells,  7 
MINERALS  — 

Natural  gas  is  a  mineral,  29 

Oil  is  a  mineral,  29,  304 

Reservation  of  includes  oil  and  gas,  304 

Taxing,  741 
MIXER  — 

Defined,  221,  551 

Extra  charge  for,  561 

Unreasonable  requirements  concerning,  554 

Who  must  furnish,  552 
MOLDAVIA  — 

Oil  wells,  1,  7 
MONOPOLY  — 

Construction  of  exclusive  grants,  446 

Dating  lighting  contract  ahead,  462 

Division  of  subject,  440 

Estoppel  to  contract,  450 

Exclusive  franchise  strictly  construed,  446 

for  artificial  gas  does  not  exclude  natural  gas,  455,  742 

Federal  question,  when  raises,  451 

Forfeiture  of  exclusive  franchise,  452,  454 

Gas  works  building  under  void  grant  or  franchise,  457 

Injunction  against  passage  of  ordinance.  453 

Legislature  cannot  revoke,  447 
cannot  authorize,  449 
may  authorize,  441,  442,  443 

Statute  to  authorize  exclusive  grant  necessary,  444,  449 

Streets,  see 

Void,  when  clause  does  not  make.  452 
MORTGAGE  — 

Accounting  by  mortgagee  for  profits  received,  346,  347 

Fixtures  may  take,  571,  577 

Leasehold  interest  may  be  mottgaged  by  lessee,  341 

May  work  a  forfeiture  of  lease,  174 

Miner  may  mortgage  premises.  341 

Mortgagee  in  possession,  346,  347 

Municipal  gas  plant  may  be  mortgaged,  348 

Owner  of  land  may  take  out  g^is  and  oil  from  mortgaged  lands,  344,  345 

Pennsylvania  statutes  concerning,  343 

Verbal  agreement  for,  342 

Waste,  344,  345 

committed  by  mortgagee,  346,  347 
MUNICIPALITY  — 

Action  against  to  recover  cost  of  gas,  432 

Appropriation  for  light,  when  necessary,  427 

Assessing  abutting  property  for  gas  or  light,  430 

Assignment  of  lighting  contract,  414 

Bids  for  lighting,  411 


INDEX.  901 

(References  are  to  sections.) 

MUNICIPALITY—  Continued. 

Breach  of  lighting  contract,  413 

Charter  granted  by  is  a  contract,  391 

City  agreeing  not  to  compete  with  gas  company,  448 

Competing  witli  gas  company,  agreements  to  not  do  so,  448 

Competition  v/ith  private  plant,  516 

Contract,  see 

for  light  cannot  be  changed,  417 
Delegating  of  power  to  change  gas  rates,  cannot  make   404 
Discontinuing  use  of  gas,  416  ' 

Election  to  authorize  purchase  or  erection  of  gas  plant,  517 
Exempting  gas  company  from  taxation,  425 
Extending  boundaries  after  contract  made  for  gas,  419 
Extending  term  of  contract  for  light.  410 
Free  light,  424 

Gas  furnished  Avithout  contract.  418 
Gas  mains,  extending,  437 
Gas  works,  its  own  may  lease,  522 
owning,  511,  512,  513 
purchasing,  519 
selling  its  o\v^l,  521 
sole  proprietor  must  be,  518 
statute  necessary  to  build,  when,  512,  513,  514 
How  executes  contract  for  light,  412 
Indebtedness,  constitutional  limit  upon,  408,  409 
Interest,  pays  on  over-due  bills.  433 
Lamps,  what  kind  must  use  under  contract,  434 
Lamp  posts,  434 

Length  of  term  for  lighting  contract,  409 
Liability  in  operating  gas  plant,  628 
Light,  see 

Light,  exhaustion  of  appropriation.  428 
moonlight  schedule,  422 
quality  of  gas  or  light  furnished.  436 
out  of  what  fund  paid  for,  426 
tax  to  pay  for.  429 
Mandamus,  see 

Mandate  to  compel  auditing  of  bills,  431 
Monopoly,  see 
Moonlight  schedule,  422 
Oil  turning  into  sewer,  liability.  668 
Police  power  cannot  abrogate.  391 
Power  to  make  lighting  contract.  407 

to  change  rates  for  gas.  400 
Price  must  pay  for  light.  423.  424,  425 
Profit  may  make  on  gas  furnished,  515 
Rates  for  gas,  see 

fixing  in  ordinance  granting  franchise,  394 
in  annexed  territorj',  405 
regulating  after  ordinance  granted,  393 
statutory  authority  necessary  to  fix,  392 
Received  bond  to  furnish  light  under  contract,  438 
Rescission  of  lighting  contract.  413,  415 
Regulating  gas  company,  99 

Rules  and  regulations  may  adopt  for  gas  consumers,  523 
Shutting  oflf  gas,  when  may,  547 
Stock  may  take  in  gas  plant,  518 
Streets,  see 
Tax  to  pay  for  or  support  gas  plant,  429 


902  INUEX. 

(Referencts  are  to  sections.) 

MUNICIPALITY—  Continued. 

Town  becoming  city,  effect  on  gas  company,  4SG 

Trustee  for  gas  works,  520 

Void  contract,  gas  furnished  under,  effect,  420,  421 
MURRYSVILLE  — 

Gas  wells,  9 

N 

NAPHTHA  — 

A  dangerous  agency,  374,  375 
Sale  for  illuminating  oil,  liability,  678 
NATURAL  GAS  — 

Article  of  commerce,  40,  350 

Artificial  gas,  contract  concerning  does  not  relate  to  natural  gas,  455, 

742 
Damages  for  unlawfully  taking  from  well,  33 
Dangerous,  is,  382 
Early  indications  in  America,  9 
Elements  in  composition,  12 
Failure  of  supply,  531 

right  of  gas  company  to  discriminate  between  customers,  526 
Flambeau  lights,  use  of  may  be  prohibited,  386 
Fugitive  nature,  21,  24,  25  " 
Gas,  see 

Gas  wells  not  synonymous  with  oil  wells,  118,  119 
Heat,  natural  gas  is  not,  39 
Highways,  ownership  of  gas  beneath,  306 
Illegal  severance  from  earth,  27 
Injunction  to  prevent  waste.  598 
Judicial  notice  of  nature  of,  41 
Lake,  title  to  gas  beneath,  306 
Larceny,  26 

Not  synonymous  with  oil,  37.  455,  742 
Origin.  10 
Ownership  in  ground,  20,  21,  22,  24,  25 

in  pipes  and  tanks.  26 
Payment  so  much  per  well,  223 
Paying  quantities,  what  is  considered  to  be,  136 
Pressure  in  pipes,  regulating,  383 
Presumption  as  to  ownership  in  land,  59,  60 
Prohibiting  transportation  beyond  state  lines.  29,  384 
Production  will  not  prevent  forfeiture  of  oil  lease,  164 
Pumping,  regulating,  29,  394 
Realty,  a  part  of,  19 
Reservation  of  minerals  includes,  304 
River,  ownership  of  gas  beneath,  306 
Sale  and  not  a  lease  of  gas  lands,  58 
Sea,  ownership  of  gas  beneath,  306 
Severance  from  realty,  26 
Tariff,  not  subject  to,  44 
Title  to.  lessee,  when  acquired,  34 

when  vests  in  owner  of  ground,  22 
Transportation,  350  to  354  ^' 

Volatile  substance,  when  is  not,  38 
Waste,  injunction  to  prevent,  28,  385,  386 

may  be  a  nuisance,  598 

prohibiting,  28,  385,  386 
When  found,  8,  9 


INDEX.  903 

(References  are  to  sections.) 

NATURAL   GAS  —  Continued. 

Who  entitled  to  vmder  oil  lease,  119 

Wild  animals,  compared  with  as  to  ownership,  21 

MECESSARY  OF  LIFE — 

Artificial  gas  is  not,  748 
NEGLIGE^X'E  — 

Benzine  used  in  paint  exploding,  675 

Care  required,  671 

Carriers  of  oil,  negligence  of,  351 

Child,  negligence  of  its  parents  defeating  cause  of  action,  653 

Company  misleading  plaintiff"  as  to  extent  of  danger,  627 

Concurring  negligence  of  two  or  more  defendants,  605 

Contractor  occasioning  injury,  gas  company  liable,  605,  681 

Contributory  negligence  a  question  for  the  jury,  652 

of  tenant  may  bar  landlord's  right  of  action,  .654 
Danger  from  exploding  oil,  375 
Defective  cars  used  in  carrying  oil,  371,  372 
Degree  of  care  required  of  gas  coinpany,  601 
Duty  of  company  to  make  immediate  repairs,  616 
Exploding  gasoline  fire-pot,  669 
tank  injuring  servant,  684 
False  brands  misleading  dealer,  670 
Fire  communicating  wiih  adjoining  house,  671.  672 
Fire  on  railroad  communicating  with  refinery,  665 
Gas-box  occasioning  injury,  680 
Illegally  storing  oil  at  laili-oad  stations,  379 
Imperfectly  constructed  gas  building  occasiomng  injury,  683 
Implied  warranty  in  sale  of  ilhnninating  oil,  679 
Inspection  of  pipes  to  detect  leaks,  615 

right  of  company  to  inspect  premises,  615 
of  pipe-line,  378 
Intervening  agency,  614 

Jury,  when  question  of  negligence  submitted  to  them,  663 
Leaks  and  explosions,  set 

Minor  employee's  oil-soaked  clotlies  catching  fire,  674 
Oil  escaping  from  pipe-line,  377 
from  refinery,  672 
into  sewer,  668 
Pipes  used  Avithout  knowledge  of  defects  in  them,  747 
Question  of  negligence,  when  for  jury,  663 
Refinery  burned  by  railroad  company,  665 
Repairs,  duty  of  gas  company  to  make,  immediately,  616 
Rescuer  injured  by  negligence  of  oil  or  gas  company.  673 
Reversions^  when  may  recover  damages  caused  by  an  explosion,  654 
Right  of  action  over  against  wrongdoer.  656 
Sale  of  naphtha  for  illuminating  oil,  678 
Servant  of  company  injured  by  defective  appliances,  676 
entitled  to  safe  place  in  which  to  work,  685 
defective  ladder  injuring,  686 
of  purchaser  injured  by  exploding  oil,  677 
Shipping  oil  on  trains  carrying  other  goods,  373 
Shooting  wells,  667 

Statute  changing  rule  as  to  rendering  company  liable.  606 
Stop-cock,  failure  to  provide,  666 
Storing  oil  in  warehouse,  380 
Streets,  see 

rendered  dangerous  by  laying  gas  mains,  682 
Thief  setting  oil  on  fire,  381 


904  INDEX. 

(References  are  to  sections.) 

NEW  YORK  — 

Fiedonia  gas  well.  9 

Oil  spring  within  discovered  at  an  early  date,  3 

NEW  ZEALAND  — 

Oil  wells.  7 
NINEVEH  — 

Asphalt  used  in  cementing  wails,  1 
NITROGLYCERIN  — 

Exploding  in  oil  or  gas  well,  31 
NOISOME  SMELLS  — 

When  a  nuisance.  586,  587,  588 

NOTICE  — 

Change  of  gas  rates  by  city,  400 

Election  to  declare  forfeiture  of  lease,  158 

Evadence  of  other  leaks,  to  show.  621,  622 

to  company  of  danger  to  mains,  620,  622 
Improperly  recorded,  88 
Leaks   (of),  duty  to  prevent,  615  to  619. 
Prior  lease,  69.  88 

Property  owner's  duty  to  notify  gas  company  of  leaks,  626 
To  one  of  several  joint  lessees  suHicient,  87 
Withdrawing  gas  from  mains  without  giving  notice,  630 

NUISANCE  — 

Blocking  highway  or  street,  465 

Business  being  authorized  by  State  is  no  defense,  591 

Damages  occasioned  by  storing  or  bringing  oil  on  land,  584 

Degree  of  annoyance  from  escaping  gas,  question  for  jury.  589 

Duty  of  owner  to  prevent  continuation  of  damages,  592 

Evidence  concerning,  593 

Former  recovery,  when  a  bar,  596 

Gas-box  in  street  is  not.  498 

Gas  or  oil  well  near  dwelling  house,  590 

Indictment,  concerning,  597 

Injunction  to  prevent,  594.  595 

Jury  when  to  determine  question  of,  589 

Noisome  smells.  586,  587.  588 

Obstructing  street,  494 

Pollution  of  springs  or  well,  581,  582,  607 

Stream  polluting.  582 

Subterranean  waters,  polluting,  583 

Trees  and  vegetation  destroying,  585 

Well  polluted  with  gas,  and  yet  good  for  some  purposes,  607 

O 

ODORS  — 

When  a  nuisance,  586,  587,  588 
OHIO  — 

Early  gas  wells,  9 

Early  oil  springs,  2,  4 
OIL  — 

Contract  for  purchase,  745 

Deception  used  to  secure  sale  of  dangerous  oil,  678 

Implied  warranty  in  sale  of  illuminatijig  oil,  678 

Inspection  of.  State  may  require,  388 

Leaks  and  explosions,  see 

Negligence,  see 

Not  synonymous  in  statute  with  gas,  37 


INDEX.  905 

(References  are  to  sections.) 

OIL  —  Continued. 

Ordinance  may  regulate  storage,  380 

Petroleum,  see 

Sale  of  oil  of  low  fire  test,  explosion,  677,  678 

Taxing.  741 

Term  "fire  proof  oil"  is  not  a  trade  mark,  746 

United  States  may  not  prohibit  sale  of,  390 
OIL  REFINERY  — 

Negligence,  see 

Subject  to  mechanic's  lien,  340 
OLD  TESTAMENT  — 

Contains  reference  to  petroleum,  1 
OPERATIONS  ON  LEASED  PREMISES  — 

Celerity  with  which  must  be  ])ushed,  96 

Cessure  after  work  begun,  140,  141 

Diligence  in  operating  leased  premises  after  development,  97 

Failure  to  operate  and  not  failure  to  develop,  162,  163 

Inability  to  begin  operations,  173 

Obligation  of  lessee  to  operate  premises  implied,  151 

Temporary  suspension  of,  eflfect,  141 

When  must  be  begun,  90 
OPTION  — 

City  to  purchase  gas  woiks,  458 
OPTION  FOR  LEASE  — 

Assignment  of  lease  carries,  198 

Consideration  for,  60,  67,  71 

Essence  of,  72 

Extension  of  lease,  68 

Leases,  see 

Payment  of  rent  instead  of  developing  premises,  145 

Purchase  of  land  after  development,  67 

Right  to  pay  rent  or  drill  well,  73 

Revocation,  71,  72 

Time  for  performance,  73 

What  is  an  option,  62 

When  must  be  general  in  the  regulation  of  street,  460 

ORAL  AGREEMENTS  — 

Statute  of  Frauds  invalidates,  75,  76 
W^ritten  lease  may  be  changed  by,  83 

ORDINANCES  — 

Enjoining  passage  of  by  city  council,  453 

Rates  for  gas  fixed  by  392,' 393,  394 
ORTON,  PROFESSOR  — 

Theory  of  origin  of  petroleum  and  gas,  10 
OVERCHARGE  — 

Recovering  back,  544 
OWNERSHIP  — 

Oil  and  natural  gas  in  earth,  19,  20,  21,  22,  23,  24,  25,  26,  27,  29 


PAINT  SHOP  — 

Using  benzine  in  for  painting  purposes,  insurance,  675 

PAROL  AGREEMENTS  — 

Statixte  of  Frauds  avoids  parol  leases,  75,  76 

PARSEES  — 

Worshiped  natural  gas,  8 


906  INDEX. 

(References  are  to  sections.) 

PARTITION  — 

May  be  made  of  mineral  lands,  276,  277 

When  does  not  lie,  36 

Works  a  dissohition  of  mining  partnership,  320 
PARTNER  — 

Community  of  interest,  312.  315 

Confidential  relations,  312 

Co-tenants,  see 

Each  partner  liable  for  all  partnership  debts,  325 

Incoming  partner  liable  for  debts,  324 

Lien  upon  partnership  assets,  323 

Promotors  and  prospectors  are  not  partners,  318 

Selection,  who  makes.  315 

Tenants  in  common  are  not  partners,  311,  316 
PARTNERSHIP   (MINING;  — 

Association  of  several  lessees  in  mining  enterprise,  legal  eflfect,  316 

Borrowing  money,  power  of  partner  to  do  so,  322 

Buying  supplies  for,  who  may,  322 

Debts  of,  partner  liable  for  all  partnership  debts,  325 
liability  of  incoming  partner  for,  324 

Dissolution  revokes  license,  64 
what  occasions,  319 

Duration  of  mining  partnership.  319 

Fidelity  relations  between  partners,  288 

Heir's  right  in  mining  property,  315 

Hiring  labor,  power  of  partner  to  do  so,  322 

Illustrations  of  what  make  mining  partnerships,  317 

Lien  of  individual  partners,  322 

Limited  partnerships,  326 

Majority  of  partners  control  mining  operations,  321 

Mining  agreements  that  create  ordinary  partnerships,  313 
applicable  to  gas  and  oil  operations,  310 
associations  may  become  an  ordinary  partnership.  312 

Partition  and  accounting  works  dissolution  of  partnership,  320 

Partners,  selection,  315 

Power  of  partners  in  mining  or  oil  enterprises,  322 

Presumption  of  equality  of  interest  of  partner,  319 

Sale  of  interest,  effect  on  partnership,  315 

Tenants  in  common  not  partners,  311 

Working  mine  together  creates  mining  partnership,  314 
-  PASSENGEPvS  — 

On  train  injured  by  exploding  oil,  375 
PAYMENTS  — 

Application,  136 
PAYING  QUANTITIES  — 

Defined,  134,  135,  136 
PENNSYLVANIA  — 

Early  gas  wells,  9 

Mortgaging  lease,  statute  concerning,  343 

Taxing  pipe  lines  and  petroleum,  740 
PERSIA  — 

Oil  wells,  7 
•'PETROLEUM—  * 

Article  of  commerce,  40,  350 

Composition.  11 

Damages  for  unlawfully  taking  from  well,  33 

Dangerous  agency  is  not,  372,  374 


INDEX.  907 

(References  are  to  sections.) 

PETROLEUM  —  Continued. 

Defective  barrels  used  in  shipping,  liability,  374 
Early  attempts  at  refining,  12 

at  transportation.  15 
Escaping  from  pipe  lines,  liability,  377 
Fugitive  nature,  21,  24,  25 
Highway,  ownership  of  beneath,  306 
Illegally  severing  from  earth,  27 

storing  at  railroad  station,  379 
Ingredients,  11 

Judicial  notice  of  properties.  41 
Lake,  oil  beneath,  ownership,  306 
Larceny  of  when  in  pipe  lines,  46 

generally.  26 
Mineral,  oil  is.  IS 
Origin,  10 
Ownership  in  ground,  20,  21,  22,  24,  25 

in  pipes  and  tanks,  26 

in    pipe    lines,    355 
Presumption  of  owTiersliip  in  land,  59,  60 
Production  of  will  not  prevent  forfeiture  of  gas  lease,  164 
Pumping,    30 

Sale  of  oil  lands  and  net  a  lease,  58 
Shipping  on  train  carrying  other  goods,  373 
Storing  in  warehouse,  negligence,  380 
Realty  is  a  part  of,   18 
Reservation  of  minerals   include,   304 
River,  beneath,  ownership,  306 
Sea,   beneath,   ownership.   306 
Severance  from  realty,  efl'ect.  26 
Thief  setting  oil  on  fire,  negligence,  381 
Title  to  oil  in  tanks  or  pipe  lines,  46 

when  vests  in  owner.  22 

when   lessees   acquire,   34 
Transportation  with  defective  appliances,  371,  372 
Use  of  as  a  medicine,  14 

\^'aste  of  gas,   when  drawing  oil    from   well,   385 
Wild  animals  compared  with  wandering  nature  of,  21 
PHILLIP'S  WELL  — 
\Miere  drilled,  6 

PIPES  — 

Abutting   land   owner    removing  pipes   from   highway,   508 
Breaks  occasioned  by  frost,  624 

by    ordinary   use   of   street,    623 

from  lack  of  support,  liability  of  gas  company,  625 
Changing  grade  of  streets,  493 
Condemnation  of  highway   for  pipes,   503 
Consent  of  county  authorities  to  lay  in  highway,  506 
Crossing  highway,  506 

Defective,  will  not  always  render  company  liable  for  leaks,  747 
Depth  at  which  should  be  laid  in  streets,  480 

Evidence  of  undue  pressure  in  places  other  than  place  of  leak,  632 
Excavations  near   pipe   line   causjing  break,   liability   of  gas   company, 

625 
Extension  of  mains  to  supply  customers  with  gas,  528,  529 
Fixtures,  when  are,  571,  572,  573 
Gas  mains,  see 

Injunction  to  restrain  laying  in  streets.  487 
Injuries  occasioned  by  laying  gas  pipes  in  streets,  682 


908  INDEX. 

(References  are  to  sections.) 

PIPES  —  Continued. 

in    repairing    streets,    496 

Inspection    of    pipes    required,    615 

In  streets,  not  an  additional  burden  on  fee,  500 

Laying  in  country  higlnvay.  502  to  500 
in  navigable  river,  501 
in  streets,  consent  of  city  required,  466,  468 

Notice  to  gas  company  of  danger  to  its  mains,  620 
of  leaks  in  pipes.  "620,  621,  622 

Personal  property   of  gas   company,   579 

Removal,   when  unlawfully  laid  in  highway,   509 

Revocation    of   license   to   use   highway,    507 

Street  unlawfully   laid  out,   pipes  laid   in,   488 

Support  of.  497,  368 

Supply   pipe,   ownersliip,   550 

Taxed   as   personal    property.    730 

Undue   pressure   of  gas   causing   leaks,   631 

Use  of  surface  of  highway  or  street,  510 
PIPE-LINES  — 

Coal   mine  beneath,   support,   368,   407 

Conversion  of  oil  in,  46 

Crossing  right  of  way  of  railroad  company,  365 

Damages  occasioned  by  removal  from  right  of  way,  364 

Early  attempts  at  vise  of,  15 

Eminent  domain  used  to  secure  right  of  way  for,  356,  357,  358 

Exemption   from   taxation   in   Pennsylvania,    740 

Inspecting,  378 

Laying   in    country    highway.    360 

License  to  lay  pipe-lines,  revocation,  366 

Measure  of   damages   in   taking  right   of  way  for,   361    to   364 

Number  that  can  be  laid  in  right  of  way,  259 

Oil  escaping  from,  377 

Ownership  of  oil  in  process  of  transportation,  355 

Personal  property  of  gas  company.  579 

Petition  to  secure  right  of  way  for,  367 

Pressure  in  of  gas  may  be  regulated,  383 

Removal.  579 

Support,   right  to,   368 

Use  in  transportation  of  gas  and  oil,  350  to  354 
PLINY  — 

Refers  to  oil  springs,  1 
PLUMBER  — 

Causing  explosion,   liability  of  gas  company,  638 

Gas  mains,  see 
POLICE   POWER—     ' 

Abandonment  in  fixing  rates  for  gas,  398 

Granting  a  charter  does  not  repeal  police  power.  391 

Inherent  power  to  regulate  gas  company,  399,  406 

Legislature  may  exercise,  382 
I  Rates,  fixing,  does  not  authorize,  406 

Regulation  of  transportation  of  oil  or  gas,  355 
POSSESSION  — 

Effect  of  taking  under  contract  for  lease,  292 
PREMISES  —  >- 

Defined  in  insurance  cases,  689 
PRESUMPTIONS  — 

Arising  from   proof  of  explosions.   611.  612 

Ownership  of  oil  or  gas  in  land,  59,  60 


INDEX.  909 

(References  are  to  sections.) 

PRIVITY    OF    ESTATE  — 
Possession  of  asignee,  203 

PROFITS  — 

Defined,   224 
PROMOTERS  — 

Are  not  partners,  318 
PROSPECTORS  — 

Are  not  partners,  318 

PUBLIC  LANDS  — 

Locations  and  entiy  of  oil  and  gas  claims,  309 

PUMPS  — 

Use  of  to  increase  flow  or  gas  or  oil,  29,  30 

Q 

QUIETING  TITLE  — 

Title  of  lessee  when  may  be,  103 
QUO  WARRANTO  — 

Action,  see 
Forfeiture  of  right  declared  by  to  occupy  streets,  491 

R 
RAILROAD  — 

Common  carriers,  see 

Crossing  right  of  way  with  pipe-line,  365 

Negligence,  see 

RATES  FOR  GAS—  ,         ^  ^      . 

Acceptance  of  provisions  of  subsequent  ordinance  that  changes  rates  lor 

gas,   396 
Action  to  lecover  price  of  gas,  545 
Annexing  territory,  rate  for  such  territory,  405 
City  reguhiting  rate  after  franchise  granted,   393 
City  must  have  statutory  authority  to  fix  rates,  392 
Classification  of  customers,  543 
Collection   of,    how    made,    545 

by  distress,  546 
Consumer,   see 

Delegation   of    power   to    determine,    cannot  be   done,    404 
Extra  charge  for  meters  and  mixers,  561 
Fixed  by  city  in  its  consent  to  assignment  of  franchise,  395 

in  ordinance  granting  franchise,  394 
Government  tax  may  be  added  to  price  of  gas,  561 
Notice  by  city  of  intention  to  change  rates,  400 
Overcharges,   can  be  recovered  back,  544 
Police  powers  not  abrogated  in  fixing  rates,  406 

cannot  be  abandoned,   398 
Power  to  change,  400 
Prices  to  be  charged  to  customers.  539,  542 

in  other  states  fixing,  539.  542 
Prohibition  to  change  for  specified  time,  397 

Reasonable,   must  be.  when  changed  by  city  or  state    401   to  40.3 
Requiring  certain  quantity  per  month  to  be  used.  5b- 
Taxes  are  not  rates.   734 
When  may  be  changed  by  city  or   state,  401.  402,  4U.i 

REAL  ESTATE  — 

Contract  for  oil  may  give  an  interest  in  land.  .>- 
Lease,   see  i    -q 

No  interest  in  land  vests  if  no  oil  or  gas  discovered,  o6 
Oil  and  gas  a  part  of  land.  19 
Refinery    burning,    665 


910  INDEX. 


(References  are  to  sections.) 

RECEIVER  — 

Liable-  for  royalty  on  oil  he  takes  out,  253 

Light,   when  must  furnish,  438 

Lighting  contract,  wlien  may  rescind,  414,  415 

Tenants  in  common  of  oil  (for).  316 

Title  to  oil  lands  in  dispute,  300 

When  will  be  appointed  to  operate  gas  wells,  300 

RE-ENTRY  — 

Release  of  premises  equivalent  to,  167 
When  necessary  to  enforce  forfeiture,  166 

REFINERIES  — 

Burned  by  negligent  act  of  railroad  company,  665 

Early  refineries,   13 

Permitting  oil   to   escape   from   into   harbor,   672 

REFINING  — 

Early  attempts  at  refining  petroleum,  13 

REGULATIONS  — 

Power  of  legislation  to  regulate  use  of  oil  and  natural  gas,  25 

Rules,  see 
REIMBURSEMENT  — 

Insurance,  see 

When  an  operator  entitled  to,  121 

RELEASE  — 

Equivalent  to  a  re-entry,   167 
REMAINDERMAN  — 

May  not  drill  wells,  267 

When    estopped,    272 

RENT  — 

Abandoning   lease,    falling   due   thereafter,    137 

Co-tenant  may  receive,  287 

Defined,  221,  222 

Eviction  releases  lessee  for  rent,  241 

Failure  of  oil,  rent  ceases,  248 

Free  gas,  225.  226 

Instances  of  lessee's  liability,  250 

Inter-dependent   conditions,   235 

Joint  lessor.Sj   230 

Lessee  must  pay.   180 

cannot  avoid  by  taking  advantage  of  forfeiture,  155,  238,  239 

Mining  rents  defined.  221 

New  lease  effect  upon,   236 

Option  to  pay  rent  or  drill   well,   73 

Oral   change  of   terms   of  lease.   247 

Payment  of  rent  if  well  is  not  drilled,  242 
instead  of  developing  premises,  145 
must  be  made  although  no  oil  on  premises,   179 
will  not  prevent  forfeiture  for  neglect  to  develop,  178 

Royalties,  see 

is  a  rent,  221 

Surrender  necessary  to  evade  liability  fof,  240 

To  whom  payable.  230 

Various  kinds,  220 

Waiver  of  right  to  exact^  233 

When  due  for  failure  to  develop  land,  229 


INDEX.  911 

(References  are  to  sections.) 

RESERVATION  — 

Distinction  between  and  an  exception,  302 

Exception,  see 

Of  all  minerals  includes  gas  and  oil,  304 

Restriction  of  right  to  drill  for  oil,  305 

Severance  of  mineral  by  use  of,  303 

Subject  to  lien  of  judgment,  307 

What,  is  of  gas  and  oil,  35 

Wife's  interest  in,  308 
REVERSIONER  — 

May  drill  wells,  267 

When  may  recover  damages  caused  by  an  explosion,  654 
RIVER  — 

Laying  gas  pipes  in,  501,  608 

Oif  beneath,  306 
ROYALTIES  — 

Abandonment,  royalties  falling  due  after,  137 

Account   rendered^   251 

Assigned,  may  be,  202 

Co-tenant  may  receive,  287 

Damages  for  failure  to  deliver  to  lessor  his  share,  231 

Defined,  221,  222 

Failure  to  pay,  effect,   177 
of  oil,  rent  ceases,  248 

Gas  or  oil  used  to  operate  leased  premises,  227 

How  collected,  252 

Income  defined,  224,  225 

Instances  of  lessee's  liability,  250 

Inter-dependent  conditions,  235 

Interest  on,  when  begins  to  run,  232 

Joint  lessors,  230 

Lessee  can  avoid  by  taking  advantage  of  forfeited  clause,  238,  239 

Lien,  occurring  during  receivership,  253 

Minimum  production  allowed,  243 

New  lease,  effect  upon,   236 

Option  to  pay  or  drill  well.  73 

Oral  change  of  terms  of  lease,   247 

Payment,  so  much  per  well,  223 

Percentage  of  profit  or  income^  224 

Purchase  money  for  premises,  when  is,  244 

To  whom  payable.  230 

Various  modes   of   fixing,   220 

Waiver  of  right  to.  233 

When  due,  228,  229 
RULES  — 

City  may  adopt  for  its  customers,  523 

Consumer,  see 

Gas  company  has  a  right  to  adopt  for  its  customers,  537 

Meter  regulations,  560 

Regulations,  see 

Removal  of  meter,  564 

Subscribing  to,  538 


SALE  — 

Lease,  see 

Municipal  gas  works  may  be  sold  by  city.  521 


912  INDEX. 

(References  are  to  sections.) 

SARDINIA  — 

Oil  found  there,   1 
SCONCES  — 

When  are  fixtures,  568 
SCOTLAND  — 

Oil  wells,  7 
SEA  — 

Ownership  of  oil  beneath,  306 
SENECA  — 

Oil  describes,  3 
SERVANT  — 

Exploding  tank   injuring,   684 

Injured  by  use  of  defective  ladder,  686 

Injured  by  defective  appliances,  676 

Purchaser  injured  by  exploding  oil.  677 

Safe  place  in  which  to  work  is  entitled  to,  685 

When  may  recover  for  injury,  666 

SEWERS  — 

Gas  driven  from  sewer  into  house  by  escaping  illuminating  gas,  636 

Gas  escaping  into  sewer  from  pipes  and  entering  house,  629 

Oil  escaping  into  sewers  and  causing  fire,  668 
SHADE  TREES  — 

Escaping  gas  injuring,  635 
SHUTTING   OFF   GAS  — 

Meaning  of  when  used  in  contract,  744 
SHRUBBERY  — 

Escaping  gas  injuring,  635 
SICKNESS  — 

Occasioned  by  failure  to  supply  gas,  liability,  534 
SIDEWALK  — 

Occupying  with  gas  pipes,  474 
SILLIMAN,    JR.,    BENJAMIN  — 

Description  of  oil  springs,  3 
SMOKE  — 

When  a   nuisance,   586 
SOUTH  AMERICA  — 

Oil  wells,  7 
SPECIFIC  PERFORMANCE  — 

To  enforce  contract  for  lease,  293 
SPRING  IS  — 

An  oil  spring,  1 
SPRINGS  — 

Pollution,  581 
STATE  — 

Waste  of  natural  gas  may  prevent,  598 
STATUTE  OF  FRAUDS  —  ^ 

Assignment  of  contract.  94 

Contract    for    lease,    sulficiency,   291  . 

Decisions  concerning,  75 
STATUTE  OF  LIMITATIONS  — 

Acquiring  right  to  oil  or  gas  by  adverse  possession,  299 

No  bar  to  an  accounting,  301 


INDEX.  913 

(References  are  to  sections.) 

STOP   COCK  — 

Neglect  in  not  providing,  liability  of  gas  company,  665 
On  street,  who  may  open,  613 
STOVES  — 

When  gas  stoves  are  fixtures,  568 
STREAMS  — 

Pollution  by  gas  works,  582 
Subterranean,  polluting,  583 
STREETS  — 

Change  of  grade,  effect  on  pipes,  493 

Change  of  use  of  franchise,  478 

Conditions  of  grant  to  use  street  must  be  performed,  472 

Consent  of  municipality  to  occupy  streets  is  necessary,  466 

when  not  necessary,  468 
Consolidation  of  gas  companies  occupying  streets,  485 
Control,  464 

Cutting  into  improved  pavements,  495 
Defined,  463 
Forfeiture  of  right  to  occupy,  490,  491 

waiver,    492 
Franchise,  see 

acceptance  of  grant,  471 

to  occupy,  disused,  469,  470 
Gas   boxes   in    street,   498 
Gas  posts  in  street,  499 
Grant  of  right  to  occupy  street     strictly  construed,  473 

before  company  organized,  482 
Highway,  see 

Indictment  for  obstructing,  495 
Injunction,  see 

to  restrain  laying  pipes,  487 

to  protect  company's  rights,  481 
Injury  to  pipes   in  repairing  streets,  496 

to  persons  occasioned  by  laying  gas  mains  therein,  682 
Length  of  time  of  grant  to  occupy,  483 
License  to  occupy,  489 
Monopoly,  see 

Natural  gas  company  may  not  use  for  artificial  gas,  478 
New,  right  to  occupy,  475,  476 
Obstructing  with  pipes,  494 

Ordinance  granting  right  to  occupy  when  void,  effect,  479 
Ordinance  to  occupy  with  gas  mains,  460 
Permission  to  occupy  streets,  495 
Pipes,  see 

laying  in  streets,  466.  468 

not  an  additional  burden,  500 
Regulation  of  right  of  gas  company  to  occupy,  effect,  480 
Repairing,  495 

Revocation  of  grant  to  occupy,  489 
Right  to  grant  a  franchise  not  property  of  city,  467 
Sale  or  assignment  of  right  to  occupy,  477 
Sidewalk  a  part  of,  474 
Specification  of  in  grants,  474,  476 

Statute  necessary  to  authorize  city  to  give  an  exclusive  grant,  444,  445 
Support  of  gas  mains.  497 
Surface  of  cannot  be  used  for  pipes,  510 
Tearing  up,  494.  495 
Termination  of  life  of  corporation  before  expiration  of  franchise,  484 


914  INDEX. 

(References  are  to  sections.)  ^ 

STREETS  —  Continued. 

Territory  annexed  to  another  city  after  grapt  made,  475 

Town  becoming  a  city,  effect  on  gas  company,  486 

Unlawfully  laid  out.  effect  on  gas  company  occupying  with  its  mains, 
488 

Use  for  private  purpose  cannot  be  made,  465 

What  streets    gas  company  may  occupy,  474,  476 
SUB-LEASE  — 

Assignee  of  lease,  see 

Assignment  of  lease  is  not  a  sub-lease,  197 

Defined,  217 
SUB-LESSEE  — 

Assignee  of  lease,  see 

Liability  of  sub-lessee,  217 
SUBTERRANEAN  WATERS  — 

Polluting,  583 
SUIT  — 

Action,  see 

Cancellation  of  part  of  lease,  186 

Forfeiture,  see 

Lease,  see 
SUMATRA  — 

Oil  wells,  7 
SUPPORT  — 

Right  to  have  for  pipe  line,  368 
SURETY  — 

When  assignor  of  lease  is  liable  on  account  of  lease,  216 
SURFACE  — 

Oil  must  be  brought  to  surface  to  comply  with  terms  of  lease,  176 

Owner  of  mineral  not  co-tenant  with  owner  of  surface,  280 

Right  of  lessee  to  use,  77 
SURRENDER  — 

After  assignment,   168 

Co-tenant  may  make  or  receive,  284,  286 

Involves  yielding  up  the  lease  or  premises,   142 

Necessary  to  evade  liability  for  rent  or  royalty,   154,  240 

Parol,  by.  may  be,   144 

Substitution  of  tenants  or  assignment  of  lease,   143 

When  necessary,  142,  144,  234 
'  SYNONYMOUS  — 

Gas  is  not  with  oil,  164 

Natural  gas  grant  has  no  application  to  artificial  gas  grant,  455 

Oil  lease  not  with  gas  lease,  37,  118,  119 

Statute  relating  to  artificial  gas  has  no  application  to  natural  gas,  742, 
478 

T 

TABLES  — 

Composition  of  petroleum,  11 
of  gas,  12 
TANKS  — 

Assignment  of   lease   does   not   carry  c*l  in.   254 

Exploding  tank  injuring  servant,  684 
TANK   CARS  — 

Use  of  defective  cars  in  transporting  oil,  371 

Use  of  in  transporting  oil,  351 


INDEX.  915 

(References  are  to  sections.) 

TARIFF  — 

Natural  gas  not  subject  to  laws  of,  44 

TAXES  — 

Adding  to  price  charged  for  gas,  561,  737 
Exemption  from  taxation,  728,  740 

from   in  fixing  price  for  gas.  425 

of  municipalities  from  taxation,  733 

of  property  of  manufacturing  company,  729 
Franchise,    owning,    735 

Gas  mains  of  city  plant  taxed  as  personal  property,  730 
Inter-state  commerce  law  does  not  prohibit,  739 
Leases  and  minerals,   741 
Lessees  when  must  pay,  741 
Meters,  556 

Object  of  tax.  when  must  be  stated  in  statute^  736 
Oil  in  pipe-line.  739 

Rates  for  gas  charged  consumers  are  not  taxes,  734 
Tax  to  pay  for  gas  or  to  support  gas  plant,  429 
Stock  and  valuation,   732 

when  exempt  from  taxes,  728 
Surplus,  certificate  of,  taxing,  732 
United  States  revenue  adding  to  cost  of  gas,  737 

TENANCY  — 
At  willj  55 
From  year   to  year,   55 

TENANT  — 

Contributory  negligence  of  may  bar  landlord's  right  of  action,  654 

Co-tenant  cannot  bind  his  fellow  tenant,  62 

Fixtures,  right  to,  573,   574 

Insurance  policy,  violating  its  provisions,  696 

Joint  lease  by  separate  land  owners,  86 

Landlord  and  tenant,  see 

Right  of  action  against  landlord,  646 

Shutting  off  supply  of  iras  because  old  bills  not  paid,  547 

Subsequent  tenant  not  liable  for  former  tenant's  gas  bill,  547 

Supplying  with  gas,  gas  company  must,  526 

When  relation  of  landlord  and  tenant  creates,  57 
TENANTS  IN  COMMON  — 

Are  not  partners,  311,  316 

Co-tenant,  see 

cannot  bind  his  fellow  tenant,  62 

Liability  of  assignee  of  part  interest  in  lease,  207 

Payment  of  rent  or  royalty  to  one  tenant,  230 

Two  tracts  of  land  drained  by  one  well,  246 
TENANTS  FOR  LIFE — 

May  work   open   mine,   259 

Oil  wells  already  open  may  work,  261,  262 

When  may  open  new  mines,  260 
may  take  out  oil  or  gas,  35 

TAXATION  — 

Cost  of  inspecting  meters,  735 
Exemption  from  taxation,  740,  729 

of   municipality  from,   733 
Franchise,  731 
Gas  mains,  730 
Interstate  commerce,  739 
Leases,  741 


916  ■'  INDEX. 

(References  are  to  sections.) 

TAXATION  —  Continued. 

Object  of  tax,  stating  in  statute,  736 

Product  in  pipe-lines,   739 

Rates  charged  consumers  are  not  taxes,  734 

Stock,   valuing,   732 

Set-off,  738 

Surplus,  732 

TAXES  — 

Consideration  of  gas  contracts,  56 

THIEF  — 

Setting  oil  or  gas  on  fire,  381 

TITLE  — 

Interest  of  lessee  in  various  leases,  57 

Failure  of,  reimbursement  of  oil  operator,  121 

Life  tenant  severing  oil  from   premises,   269,   270 

Non-productive  well,  effect,  139 

Oil  in  tanks  or  pipe-lines,  46 

Owner  of  land  has  to  oil  or  gas,  24,  25,  26,  27 

Severance  of  oil  or  gas  from  land,  effect,  26 

When  title  to  oil  or  gas  vests  in  lessee,  53,  54 
TRADE  MARK  — 

The  term  fire  proof  oil  is  not,  746 
TRANSPORTATION    OF    OIL   OR   GAS — 

Carrying  gas  beyond  state  boundaries,  352 

Defective  cars  causing  fire,  605 

Early  history   of   pipe-lines.   15 

Injury  occasioned  by  reason  of  defective  cars  or  track,  371  to  376 

Inter-state  commerce,  350  to  353,  384 

Limiting  that  of  oil  or  gas,  40 

Of  oil  or  gas  a  public     use,  350 

Prohibiting  transportation  of  natural  gas  beyond  state  lines,  384 

TREES  — 

Destroyed   by   gas,   585,   662 

Shade  trees,  see 
TROVER  — 

Lies  to  recover  oil,  27 
TRUSTEE  — 

To  operate  city's  gas  works,  520 

TRUSTS  — 

Unlawful  combinations,  sec 

U 

UNLAWFUL  COMBINATIONS  — 
Between  gas  companies,  459 

UNITED   STATES  — 

Early  indications  of  natural  gas.  9 
May  not  prohibit  the  sale  of  naphtha,  390 
Oil  wells   in,   7 
Refining  petroleum  in.  13 
Revenue  tax  added  to  cost  of  gas,  435 
Taxing  gas  plants  and  gas,   737 
Tariff,  see  * 

V 

VEGETATION  — 

Destroyed  by  leaking  gas,  585 
Proof  of  effect  of  gas  upon,  662 


INDEX.  917 

(References  are  to  sections.) 

VENDEE  — 

Fixtures  on  coal  or  mineral  lands,  575,  577 

When   entitled   to   fixtures^    570 
VICINITY  — 

Defined  in  contract  to  drill  wells,   125 
"  VOID  "— 

When  means  voidable,  151 
VOLATILE  SUBSTANCE  — 

Whether  gas  is  or   not,   38 

W 

WAIVER  — 

Insurance,  see 

Of  forfeiture,  159,   160 

Of  right  to  rent  or  royalty,  233 

Quality  of  gas  or  light  may  be  waived,  436 
WALLACHIA  — 

Oil  wells,  1,  7 
WARRANTY  — 

Implied  warranty  in  sale  of  illuminating  oil,  679 

In  policy  of  insurance,  700 

WASTE  — 

Guardian  guilty  of,  may  be,  35 

Injunction  to  prevent,  35 

Lessees  as  between,  35 

Life  tenant  must  account  for,  268 

Mortgagee  committing,  346,  347 

Mortgagor  may  take  out  gas  and  oil  from  land,  344 

Natural  gas  may  be  a  nuisance,  598 

Tenant  for  life  taking  out  oil  or  gas,  35 

Wells  near  boundary  lines  are  not,  35 

WATCHMAN  — 

Gas  company  must  maintain  to  detect  leaks,  603 

Inspectors,  see 

Leaks  and  explosions,  see 

Night  watchman  to  detect  increasing  pressure  of  natural  gas,  603 

WAYS  — 

Streets,  sec 

WELLS  — 

Agreement  concerning  locating  near  boundary  lines  of  lease,  102 

Boundary  line  upon,  to  protect  territory,  91 

Coal  mine,  passing  through.  309 

Contract  to  drill  in  the  vicinity,  125 

Damages  for  failure  to  drill,  104 

Depth,    115 

Diameter,  124 

Draining  premises  by  wells  on  adjoining  territory,  101,  102,  171,  172 

adjoining  territory,  101.  102 
Excuse  for  not  drilling,  112.  113,  114 
Forfeiture,  recovery  of  expense  of  not  drilling,   137 
Gas  to  run  drilling  apparatus,  549 
Injury  to  property  occasioned  by  shooting,  667 
Leases,  see 

Lessor  drilling  on  adjoining  premises,  100 
Lien  upon  for  supplies  furnished,  333 
Life  tenant,  see 

right  to  drill  well.  263,  265 


918  INDEX. 

(References  are  lo  sections.) 

WELLS  —  Continued. 

Located  on  stranger's  land,  116 

Locating,   109 

Maliciously  drilling  to  another's  damage,  32 

Non-productive,  .efl'ect  on  title  to  leased  premises,  139 

Nuisance,  see 

when  may  be.  59 

Number  that  must  be  drilled.  111,  112,  139 

Option,  see 

to  drill  or  to  pay  rent,  73,  242 

One    well    draining   two    tracts    of    land.    246 

Payment  of  rent  when  wells  not  drilled.  73,  242 

Payment  for  natural  gas  so  much  per  well,  223 

Plugging  natural  gas  wells,  43 
state  may  require,  385 

Pollution  of  water  wells  by  gas  works,  581 

water   still  good   for   particular  purposes  no   defense,   607 

Piunping,  see 

Royalties,  two  tracts  of  land  drained  by  one  well,  division,  246 

Selection  for  site  for,  who  makes,  110 

Shooting.   117 

Test  wells,  see 

well,  when  need  not  be  drilled,  114 

Three  months  cessure  of  work  upon,  eflFect,  140 

Waste,  see 

of   gas   in   operating  oil    wells,    385,   387 
of  gas  prohibiting,  385,  387 
WEST   BLOO]MFIELD  — 

Gas  wells.  9 
WEST  INDIA  ISLANDS  — 

Oil   wells,   7 
WEST  VIRGINIA  — 

Earl}^  oil  springs,  2 
WIDOW  — 

When  may  drill  wells  on  dower  lands,  261 
WILD   ANIMALS  — 

Ownership  of  oil  and   natural   gas  compared  with  ownership  of  wild 
animals,  21.  24,  25,  29 
WORK  — 

Celerity    with    which   must  be   pushed,   96 

Inability  to  begin  work,  173 

Operations,  see 

When   must   be   begun,    96 

When  must  be  completed,   175 


Z 


ZANTE  — 

Oil  spring,  1 


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